Spears v. Scott , 111 Ga. 745 ( 1900 )

Fish, J.

Whether Strickland, the mortgagee, could have brought, either at law or in equity, an action against Scott, on his alleged promise to Jefferson, his grantor, to pay the mortgage debt, is a question upon which the decisions of the courts of the several States are in great conflict. See Clark on Contracts, 513,' et seq.; 7 Am. & Eng. Ene. L. (2d ed.) 104, etseq. In Empire State Ins. Co. v. Collins, 54 Ga. 376, and Austell v. Humphries, 99 Ga. 408, this court held, in effect, that one for whose benefit a contract was made between others, to the consideration of which he was a stranger, could not sue.thereon in an action at law. In Bell v. McGrady, 32 Ga. 257, and Dallas v. Heard, lb. 604, wherein the contracts sued upon were construed to constitute the promisor trustee for the benefit of the third person, it-was held that the latter might sue thereon in equity. Though it be conceded that Strickland could not have maintained an action, either at law or in equity, against Scott on his promise , to Jefferson to pay Strickland the debt which Jefferson owed him, there can be no doubt that Jefferson’s administrator, Spears, had the right to bring the suit against Scott upon such promise, and to recover of him whatever balance remained unpaid of Strickland’s debt. Williams v. Moody, 95 Ga. 8. And when Strickland, at Scott’s instance and in view of the allegations in the equitable cross-petition filed by the latter, was made a party plaintiff in such action,-it could proceed in his name, and he had the right to recover therein from Scott whatever balance might be proved to be due him on his mortgage debt. Nor could Scott, after Strickland had been made a party and had filed his answer to Scott’s cross-petition, so amend his pleadings as to deprive Strickland of the opportunity to establish the allegations of his answer and to obtain the relief to which he was entitled thereon. The evidence submitted upon the trial was amply sufficient to warrant a verdict in favor of Strickland for the balance due him on his mortgage debt, and the court erred in granting the nonsuit.

Judgment reversed.

All the Justices concurring.