Wilson v. The First Presbyterian Church Of Savannah

• Decision Date: 31 July 1876
• Parties: B. J. Wilson, plaintiff in error. v. The First Presbyterian Church of Savannah, defendant in error.
• Court: Georgia Supreme Court

56 Ga. 554

B. J. Wilson, plaintiff in error. v. The First Presbyterian Church of Savannah, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

[Bleckley, Judge, having been of counsel, did not preside in this case.]

Pleadings. Amendments. Contracts. Novation. Charge of Court. New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1875.

Reported in the opinion.

A. W. Hammond & Son, for plaintiff in error.

Julius L. Brown, for defendant.

Jackson, Judge.

Suit was brought by certain persons for the use of the church, against the defendant for subscription to complete the church building. The nominal parties were stricken by amendment, and the action proceeded in the name of the church. The subscription was a "promise to pay the amount set opposite our several names, " and is fully set out in the headnotes to this case. The defendant moved from Savannah to Atlanta, and refused to pay his subscription. Work was not actually begun when he sold his residence and left Savannah, but plans were submitted to the building committee, and specifications for the work prepared for the contractors to examine and bid on before he left. The treasurer of the church gave time for one subscriber to pay and took his note without interest, which was paid. The jury found for the plaintiff $500 00, without interest. The defendant moved for a new trial, and the court overruled it, and the case is before us on the errors assigned.

*1. The first error is that the court should have dismissed when the amendment was made. The amendment merely struck out the nominal party, reaving the real party to go on with the case. If a right of action remains in the real party in interest, if that party could have sued in its own name at first, we cannot see why the amendment dispensing w: th a mere nominal party should not have been allowed. A declaration may be amended by striking out the names of one or more plaintiffs: Code, section 3486; 24 Georgia Reports, 516; 25 Ibid., 58. If so, why not by striking out a nominal plaintiff.

2. The right of action was in the church. The promise, we think, was in effect made to the church, the consideration was the mutual promises, and the work done and to be done, the plans and specifications having been actually made out before defendant left Savannah, and we think the contract valid and vested in the church the right of action. A consideration may move from one and the promise be good to another: Code, sections 2744, 2747; 35 Georgia Reports, 258.

3. There is nothing in defendant's removal from Savannah, unless he had only agreed to pay if ...