Johnson v. Rycroft

• Decision Date: 25 July 1908
• Docket Number: (No. 1,186.)
• Citation: 4 Ga.App. 547,61 S.E. 1052
• Parties: JOHNSON. v. RYCROFT.
• Court: Georgia Court of Appeals

4 Ga.App. 547

61 S.E. 1052

JOHNSON.

v.RYCROFT.

(No. 1, 186.)

Court of Appeals of Georgia.

July 25, 1908.

1. Trial—Nonsuit.

The nonsuit was proper because, admitting all the facts proved and all reasonable deductions from them, plaintiff ought not to recover.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 360.]

2. Frauds, Statute of — Promise to Pay Debt of Another—Consideration.

(a) In order to bind the promisor, the written promise of one who undertakes to pay the debt of another must contain a clear statement of the agreement, indicate knowledge of the amount promised to be paid, and show who is the promisee, as well as the promisor.

(b) The terms of a promise to assume the debt of another cannot be settled by parol.

(c) The promise to pay the pre-existing debt of another is nudum pactum, unless some benefit be secured to the debtor or to the promisor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 240, 241.]

(Syllabus by the Court.)

Error from City Court of Dawson; M. C. Edwards, Judge.

Action by W. A. Johnson against T. D. Rycroft. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Raines & Gurr, for plaintiff in error.

H. A. Wilkinson, for defendant in error.

RUSSELL, J. The plaintiff in error excepts to the grant of a nonsuit. It appears perfectly plain to us that the nonsuit was properly granted.

Johnson sued Rycroft for $175.86 and interest. The petition alleged: That during 1905 he had in his employ one Charley Coffee, as a laborer, and advanced to him money and other items which exceeded his labor by the sum of $175.86, as shown by an itemized account attached to the petition; that on November 29th Rycroft wrote a letter to the plaintiff, agreeing to pay Coffee's account if the plaintiff would write and let him know the amount; and the plaintiff notified him of the amount by return mail, and afterwards looked to him for payment, but he refuses to pay the same. A copy of Rycroft's letter is attached to the petition. The defendant answered by a general denial of each paragraph of the petition.

It is insisted, in the first place, by the plaintiff in error, that a nonsuit should not have been granted, because he proved his case as laid. We think that he failed in this particular. Placing the most favorable construction upon his evidence with relation to the letter he wrote in reply to Rycroft's letter, he certainly did not prove that Rycroftwas indebted to him more than $150, because he did not require more than that at Rycroft's hands. It would hardly be reasonable to assume that the defendant was different from all the rest of mankind, in his desire to pay more, in order to put himself in the debtor's shoes, than was demanded of him. In Johnson's letter to Rycroft, as testified to by him, he himself said that he would take $150. Yet he sues for $176.85. It is not necessary, however, to pass upon that point, because the plaintiff in error asserted that his action did not depend upon any offer of Rycroft to buy his account against Coffee, but that the suit is based wholly upon the promise to pay the debt of another. This being true, we have no hesitation in approving the ruling of the trial judge that no such promise was proved as would authorize a recovery.

The promise in writing, relied upon, must depend upon Rycroft's letter. It is as follows: "I have learned where Charley Coffee is. What does he owe you, and what will you take for it? I will pay it and risk getting him to work with me. Let me hear from you by return mail, before he gets further off." It is manifest that the intention of the writer was to ascertain, in the first place, what amount Johnson would take—to inform himself what he would have to pay. The words "I will pay it, " taken alone, might lend color to the claim of the plaintiff in error that it was an unequivocal promise to pay any sum, no matter how large, that Johnson might write him that Coffee owed him. To show that...