Watters v. Hertz

• Citation: 70 S.E. 343,135 Ga. 814
• Parties: WATTERS et al. v. HERTZ.
• Decision Date: 22 February 1911
• Court: Georgia Supreme Court

70 S.E. 343

135 Ga. 814

WATTERS et al. v. HERTZ.

Supreme Court of Georgia

February 22, 1911

Syllabus by the Court.

The petition was not subject to demurrer on any of the grounds stated.

(Additional Syllabus by Editorial Staff.)

In an action on a contract to build a dwelling of a stated kind on certain land, and to inclose the land with a fence within a specified time in consideration of the right to cut and remove timber from the land, the petition alleging that plaintiff, in consideration that defendant D. would build such dwelling and inclose the land with the fence within the time stated, transferred to him the right to cut and remove the timber and cordwood from the land; that contemporaneously with the signing by D. of a second contract between him and plaintiff, which was merely an elaboration of the original contract, defendant W. entered upon such contract an agreement signed by him "to guarantee" performance of the contract by D., such agreement by W. being without any independent consideration, so that he was merely a surety for D. for his performance of the contract; that W. entered upon the land under some agreement between himself and D. and cut and removed the timber and cordwood therefrom; that neither the dwelling nor the fence was built by either D. or W., to plaintiff's damage--stated a cause of action against both D. and W., though no title to the land in plaintiff was alleged.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by Rebecca Hertz against Allie W. Watters and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Dean & Dean and Nathan Harris, for plaintiffs in error.

Maddox & Doyal and Geo. A. H. Harris & Sons, for defendant in error.

FISH C.J. (after stating the facts as above).

The meaning of the petition as amended, construed in the light of the contracts set forth, briefly stated, is as follows: The plaintiff, in consideration that Doss would build a dwelling of stated style and dimensions on a given parcel of land, and would inclose the land with a wire fence of a certain kind (all to be accomplished within a prescribed time) transferred to him the right to cut and remove the timber and cordwood from the land. Contemporaneously with the signing by Doss of the last contract between him and the plaintiff, which was merely an elaboration of the original contract, Watters entered upon this contract an agreement, signed by him, in which he undertook "to guarantee" the performance of this contract by Doss. Such agreement by Watters was without any independent consideration flowing to him, and he was not in law a...