McIntosh v. MARVIN M. BLACK COMPANY

Court of Appeals of Georgia

McIntosh v. MARVIN M. BLACK COMPANY

152 S.E.2d 804, 114 Ga. App. 777, 1966 Ga. App. LEXIS 916

Court of Appeals of Georgia·Decided November 28, 1966·No. 42391·Published·Cited by 3 cases

Opinion

Felton, Chief Judge.

1. An action brought by the assignee of a written contract in its own name must affirmatively show that the transfer or assignment was in writing in order to withstand a proper demurrer. Foster v. Sutlive, 110 Ga. 297 (34 SE 1037); Thornton v. Reeve, 41 Ga. App. 446 (153 SE 436); Alropa Corp. v. Richardson, 58 Ga. App. 656, 657 (199 SE 666); Fenner & Beane v. Nelson, 64 Ga. App. 600, 607 (13 SE2d 694). Accordingly, where the sole allegation as to the assignment of the contract sued on was that the action was brought by “Marvin M. Black Company as asignee [sic] of Marvin M. Black and Joeanne R. Black, d/b/a Marvin M. Black Company, a contractor,” the court erred in its judgment overruling the defendant’s demurrer to the petition.

2. The demurrer to the petition having been erroneously overruled, the subsequent trial and the verdict and judgment *778 lor the plaintiff, from which the defendant appeals, were nugatory.

Argued November 8, 1966 Decided November 28, 1966 Rehearing denied December 13, 1966. Cohen, Kohler, Barnwell & Chambers, John W. Chambers, for appellant. T. Charles Allen, for appellee.

Judgment reversed.

Frankum and Pannell, JJ., concur.

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Felton, Chief Judge.

1. An action brought by the assignee of a written contract in its own name must affirmatively show that the transfer or assignment was in writing in order to withstand a proper demurrer. Foster v. Sutlive, 110 Ga. 297 (34 SE 1037); Thornton v. Reeve, 41 Ga. App. 446 (153 SE 436); Alropa Corp. v. Richardson, 58 Ga. App. 656, 657 (199 SE 666); Fenner & Beane v. Nelson, 64 Ga. App. 600, 607 (13 SE2d 694). Accordingly, where the sole allegation as to the assignment of the contract sued on was that the action was brought by “Marvin M. Black Company as asignee [sic] of Marvin M. Black and Joeanne R. Black, d/b/a Marvin M. Black Company, a contractor,” the court erred in its judgment overruling the defendant’s demurrer to the petition.

2. The demurrer to the petition having been erroneously overruled, the subsequent trial and the verdict and judgment *778 lor the plaintiff, from which the defendant appeals, were nugatory.

Argued November 8, 1966 Decided November 28, 1966 Rehearing denied December 13, 1966. Cohen, Kohler, Barnwell & Chambers, John W. Chambers, for appellant. T. Charles Allen, for appellee.

Judgment reversed.

Frankum and Pannell, JJ., concur.

McIntosh v. MARVIN M. BLACK COMPANY, 152 S.E.2d 804, 114 Ga. App. 777, 1966 Ga. App. LEXIS 916 (Ga. Ct. App. 1966).

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Opinion

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