Webb v. Thompson , 146 Ga. 461 ( 1917 )

Beck, J.

(After stating the foregoing facts.) We are of the opinion that instead of directing a verdict for the plaintiff the court should have submitted the issues made by the pleadings and evidence to the jury for their decision. If the allegations of the defendant’s answer as to the contract made between him and the plaintiff on the day upon which the defendant’s equity of redemption in the land was sold by the trustee in bankruptcy be true (and there is some evidence to support them), plaintiff should be forced to stand to and abide his part of the contract. Taking the defendant’s testimony offered in support of the allegations in his answer to be true, the plaintiff agreed that if the defendant would make and complete certain valuable improvements and would buy the equity of redemption at the sale by the trustee in bankruptcy, he should be allowed to cultivate the land during the years 1914 and 1915, and have five years after December 15, 1915, within which to pay the principal and interest .of his debt; and moreover the plaintiff agreed that he would furnish the money with which to pay for the equity of redemption. This in substance amounted to an agreement on the part of the plaintiff to extend, for a valuable consideration, the time of payment of the defendant’s debt. If the allegations of the defendant’s answer in regard to the contract made between him and the plaintiff on the day of the sale of the equity of redemption be true, then his defense is meritorious. Of the truth of that defense the jury are the sole judges. To hold that the defense is without merit would be holding in effect that, when a proposal on the part of the plaintiff to the defendant had been accepted in good faith by the latter, had been acted upon by him at a cost of over $800 — an expenditure made on the faith of the promise and agreement of the plaintiff, — the plaintiff was not bound by his agreement and promise merely because the new contract was not reduced to writing. We can not.take this view of the defense pleaded. The case must be returned for another trial, and the issues made must be submitted to the jury under proper instructions from the court.

Judgment reversed.

All the Justices concur.