Russell v. Smith

• Decision Date: 08 May 1948
• Docket Number: No. 31940.,31940.
• Citation: 47 S.E.2d 772
• Parties: RUSSELL. v. SMITH.
• Court: Georgia Court of Appeals

47 S.E.2d 772

RUSSELL.

v.SMITH.

No. 31940.

Court of Appeals of Georgia,

Division No. 1.

May 8, 1948.

Syllabus by the Court.

The petition stated a cause of action based on a valid contract, and the court erred in dismissing the case on a motion in the nature of a general demurrer.

Error from Civil Court of Fulton County; J. Wilson Parker, Judge.

Action by Nathan Russell against Lelia Smith on written contract. Judgment dismissing the action, and the plaintiff brings error.

Judgment reversed.

Nathan Russell sued Lelia Smith for $1,079.16 on a written contract dated October 29, 1947, signed under the hand and seal of each of the parties, as follows: "Be it hereby agreed between Nathan Russell, party of the first part, and Mrs. Lelia Smith, party of the second part: Whereas: Party of the first part has contracted to build and construct walls and partitions in the basement of the residence of the party of the second part at 853 Kennedy St, N.W, Atlanta, Georgia, in consideration of the sum of $2,000.00, and has further contracted and agreed to construct an additional room in said residence for the sum of $155.00, and whereas said work has been embarked upon and completed by the party of the first part, party of the second part hereby agrees, contracts and covenants to pay $1,079.16 (One thousand seventy-nine dollars and sixteen cents) to party of the first part as settlement for all amounts due and owing thereon by her to him as of October 29, 1947, and upon receipt of same, party of the first part agrees to release party of second part for any claims which he may have against her on said job as of said date. In the event that court action is necessary to collect same, party of first part does not waive any right to sue, but will sue for $1,340.16, the full amount owing and due by party of the second part. Said payment is to be made by November 15, 1947, or sooner provided loan can be made by this time."

The plaintiff alleged that said contract was entered into by the parties as a compromise of a bona fide controversy, that demand for payment had been made upon and refused by the defendant, and that the plaintiff had stood ready at all times since the making of the contract to release the defendant from all claims held by the plaintiff upon the payment of the amount stated in the contract.

The trial court sustained an oral motion to dismiss, in the nature of a general demurrer, the court being of the opinion that the contract constituted only an offer by the plaintiff to release the defendant from certain claims upon the payment of a sum of money before a certain date; and it was apparent that the defendant had merely failed to accept the offer, or avail herself of a mere option. This view adopted by the trial court. seems to be the principal contention of the defendant.

Lipshutz & Macey, Robert J. Lipshutz and Morris W. Macey, all of Atlanta, for plaintiff in error.

Spalding, Sibley, Troutman & Kelley and James M. Sibley, all of Atlanta, for defendant in error.

PARKER, Judge.

"A contract is an agreement between two or more parties for the doing or not doing of some specified thing." Code, § 20-101. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate." Code, § 20-107. That the instrument here under consideration has these basic requisites of a contract is easily demonstrable. It is an agreement between the parties whose signatures are affixed thereto, and whose relationship to each other is clearly stated, for the doing by each of some specified thing. Each promises to do a certain thing, Smith to pay a sum of money and Russell to release his claims. Whether the parties are able to contract is a question not presented by the demurrer, and nothing to the contrary appearing, they will be presumed to be so able. "A promise of another is a good consideration for a promise. * * *" Code, § 20-304; Benton v. Roberts, 41 Ga.App. 189(3a), 152 S. E. 141. The affixing of their signatures to the instrument by the parties shows their mutual assent to its terms and provisions. The subject matter of the contract is, of course, the debt owing by one of ...