Foote v. Son

• Court: Georgia Court of Appeals
• Writing for the Court: WADE, J
• Citation: Foote v. Son, 88 S.E. 689, 17 Ga.App. 799 (Ga. App. 1916)
• Decision Date: 17 April 1916
• Docket Number: (No. 6832.)
• Parties: FOOTE. v. W. K. REECE & SON.

17 Ga.App. 799

88 S.E. 689

FOOTE.

v.W. K. REECE & SON.

(No. 6832.)

Court of Appeals of Georgia.

April 17, 1916.

(Syllabus by the Court.)

Error from Superior Court, Gilmer County; H. L. Patterson, Judge.

Action by W. K. Reece & Son against Oscar Foote. Judgment for plaintiffs, and defendant brings error. Reversed.

A. N. Edwards, of Ellijay, and Wm. Butt, of Blue Ridge, for plaintiff in error.

Clark Ray, of Ellijay, for defendants in error.

WADE, J. We do not consider it necessary to amplify or discuss the rulings stated in the headnotes, but, in order that the points passed upon may be better understood, the following statement of facts is appended:

Reece & Son sued Foote in a justice's court, attaching to the summons a bill of particulars reciting that the defendant had bought from a certain firm, afterwards succeeded by the plaintiffs, various items therein set forth, aggregating $52.30. The case was tried on appeal in the superior court, and the trial resulted in a verdict in favor of the plaintiffs, and a motion for a new trial was made and overruled. According to the testimony for the plaintiffs, Wehunt & Newberry were operating a sawmill and were indebted to Reece & Son on an open account for supplies furnished. The account sued upon, except a $10 order which was accepted as given by the defendant Foote, was first charged to Wehunt & Newberry, after the plaintiffs had been furnishing these debtors for some time. W. K. Reece testified that he visited the sawmill in an effort to collect the money due his firm, and further testified as follows:

"Oscar [Foote], the defendant, said that if I would leave the lumber alone he would pay the account sued on, except the $10 order, which had not then been given, and I transferred that part of their account on our book to Oscar Foote. Wehunt & Newberry had mortgaged the lumber before defendant assumed this debt. I do not know whether Oscar was a partner or not. We had started no legal proceeding at the time defendant agreed to assume this debt. I can't say whether defendant signed the $10 order or not, I do not know his handwriting. We did not deliver the goods delivered on said order to defendant, and I do not know whether he received them or not. I have looked among all my papers and failed to find the order. There was a mortgage upon the lumber. Wehunt & Newberry owed me something like $300, besides this account sued on."

The brief of evidence set forth the following testimony as delivered in behalf of the plaintiffs by "A." Reece:

" 'A.' Reece swore that some one brought them an order that was signed by Foote to deliver certain goods which...