Willingham Sash & Door Co. v. Drew

• Decision Date: 27 June 1903
• Citation: 45 S.E. 237,117 Ga. 850
• Parties: WILLINGHAM SASH & DOOR CO. v. DREW.
• Court: Georgia Supreme Court

45 S.E. 237

117 Ga. 850

WILLINGHAM SASH & DOOR CO. v. DREW.

Supreme Court of Georgia

June 27, 1903

Syllabus by the Court.

1. Where one undertakes to perform for another service or labor for a given sum, any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity.

2. A. employed B. to build a house for the sum of $1,400. A. paid the $1,400 before the completion of the house, and, it becoming apparent that B. would be unable to comply with the contract without suffering loss, B. was told by A. to estimate what sum would be necessary to complete the building, and, upon being informed that $350 would be required, B. was told to complete the building, and this amount would be paid in addition. Under this latter arrangement, B. was to do only what was contemplated by the original contract. After the $1,400 had been paid, and before the payment of the $350, A. was served with a summons of garnishment in a suit against B., and judgment was rendered in favor of the garnishee. Held (1) that the agreement to pay the additional sum of $350 was a nudum pactum, and (2) that at the time of the service of the summons of garnishment the relation of debtor and creditor did not exist between A. and B.

Error from Superior Court, Irwin County; D. M. Roberts, Judge.

Action by the Willingham Sash & Door Company against H. C. Drew. Judgment for defendant, and plaintiff brings error. Affirmed.

L. Kennedy, Hal Lawson, and Eldridge Cutts, for plaintiff in error.

D. B. Jay, for defendant in error.

COBB, J.

The facts of this case sufficiently appear from the second headnote. The case is controlled by the principle laid down in the case of Davis & Co. v. Morgan, 117 Ga. 505, 43 S.E. 732.

Judgment affirmed. All the Justices concur.