Henderson v. Johnson

• Decision Date: 28 February 1849
• Docket Number: No. 50.,50.
• Citation: 6 Ga. 390
• Parties: Richard Henderson, plaintiff in error. vs. N. B. Johnson, defendant in error.
• Court: Georgia Supreme Court

6 Ga. 390

Richard Henderson, plaintiff in error. vs. N. B. Johnson, defendant in error.

No. 50.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1849.

Assumpsit, in Pike Superior Court. Tried before Judge Floyd, August Term, 1848.

For the facts in this the judgment of the Court.

A. R. Moore, for plaintiff in error, cited and commented on the following authorities:

14 Ves. 190. 15 Ves. 386. 8 John. 29. 17 Mass. 122. 4 Greenl. Rep. 180. 6 Cowen, 81. 3 Kent. 121. Roberts on Frauds, 117. Dane's Abr. 253, 130. 6 East, 307.

Moore & Glenn, for defendant in error, cited and commented on the following authorities:

Chit, on Cont. 499, n. 2, 507, n. 1, 517 to 519. Prince, 915. Wain vs. War Iters, 2 Smith's Lead. Cas. 147. Sears vs. Brink, 3 John. Rep. 209. 2 Story Eq. Jur. p. 62 to 75.

By the Court.—Warner, J., delivering the opinion.

The only question made by the record, and urged on the argument of this case, is as to the admisibility of parol evidence to show the consideration for which the instrument executed by the defendant, and set forth in the record, was made.

The plaintiff alleges, that one Jesse Johnson, who was the father of the defendant, made and delivered to him his promissory note, on the 11th day of December, 1841, whereby he promised to pay the plaintiff or bearer, on or before the twenty-fifth day of December, 1842, one hundred and sixty-eight dollars and seventy-five cents, for value received. The plaintiff also alleges, he was determined to sue the said Jesse Johnson, and to prevent him from removing from the State of Georgia, which he designed to do, and that the defendant, for the purpose and for the consideration of enabling the said Jesse Johnson to remove, and for the farther consideration of the plaintiff's forbearance to sue, and hold the said Jesse Johnson to bail on said debt, the said defendant, on the ninth day of December, 1844, undertook and promised to pay the plaintiff the sum of money specified in the note of the said Jesse Johnson, in a letter or note in writing, which is in the following words:

"I have agreed with Mr. Richard Henderson, for him to have the rent of the place whereon Jesse Johnson lives, until ho gets the amount of a note he holds against said Jesse Johnson, amounting to some one hundred and seventy dollars; or if the said land is sold sooner, he is to have his amount out of the first of the sale of said land.

[Signed,] "NATHAN B. JOHNSON.

"To Jno. Williams, Esq."

The plaintiff alleges that he did forbear to sue and to hold said Jesse Johnson to bail, but that the defendant has broken and violated his said agreement and undertaking, although he has rented the land for three years, and has sold the same for three hundred dollars, and refuses to pay the note of said Jesse Johnson. The defendant, by his plea, insists upon the Statute of Frauds.

Upon the trial of the cause, the plaintiff offered to prove, extrinsic of the written agreement, the consideration for which it was executed, as set forth in his declaration, which evidence wasrejected by the Court, and the plaintiff was non-suited; whereupon the plaintiff excepted, and now assigns the same for error here.

By the 4th section of the Statute of Frauds, it is declared, "No action shall be brought, whereby to charge the defendant, upon any special promise, to answer for the debt, default or miscarriage of another person, unless the agreement upon which such...