Pearce & Co. v. Stone Tobacco Co. , 125 Ga. 444 ( 1906 )

Cobb, P. J.

(After stating the foregoing facts.) The right of the plaintiff to recover depends upon whether the writing set forth in the petition contains a sufficient promise on the part of the defendants to pay the debt of Bridges & Co. It is not contended that the defendants would be liable to the plaintiff upon a contract for goods sold and delivered, for the goods were not sold or delivered to the defendants. The claim is that the sale was made to Bridges & Co., that they owed the debt, and that the defendants have assumed the payment of the debt, and are therefore liable to the plaintiff. Whether there has been any assumption of the debt by the defendants depends upon the proper construction to be placed upon the writing; and if there is in the writing such an assumption, the next question to be determined is whether the writing is a sufficient compliance with the statute of frauds. It would have been within the power of the three parties to agree among themselves that Bridges & Co. should be discharged, and that liability for the amount due by them should be assumed by the defendants; and if this had been done, no writing would have been necessary. Palmetto Mfg. Co. v. Parker, 123 Ga. 798; Pfeiffer v. Hunt, 75 Ga. 513. The plaintiff did not rely upon an arrangement like this. It relied upon the writing. Let the word “resome” he read “assume” (and it is conceded that this was the word intended to be used), the first part of the writing is simply a narrative by the defendants as to what has taken place between them and Bridges & Co., and contains no promise to pay to the plaintiff any amount whatever. There is in the words “we will pay the rest” a promise to pay. To pay what ? The writing does not disclose. It is to be inferred that the defendants refuse to pay a portion of some debt and promise to pay the rest. The writing does not even say what the liability is for, but it is connected with some article which is sold by weight, for there is complaint of a shortage of fifty pounds. Fifty pounds of what? It is said that it is tobacco, but there is nothing in the writing to indicate that it is tobacco, or what is the character of the article. This writing is relied upon to satisfy a statute which declares that the promise to pay the debt of another must be in writing. Here is a promise to pay something, but there is no identification of the debt. Unless other evidence than this writing is introduced it would not furnish the basis of a recovery. Not only the promise to pay must be in writing, but the debt which the promise relates to must be identified in the writing. If the debt is not identified by the. writing, or some other .writing, then there has been no compliance with the statute of frauds. To allow parol evidence to be introduced to identify the debt which is to he paid would as effectually destroy the object of the statute as to allow parol evidence of the promise to be introduced. While the case of Turner v. Lorillard Co., 100 Ga. 645, deals with the question whether, in a writing relied upon as a compliance with that portion of the statute of frauds in reference to the sale of goods, the price must be stated, the principle of that decision is controlling here. See also the numerous decisions of this court that the writing necessary to revive a debt barred by the statute of limitations must, without the aid of parol evidence, identify the .debt to be revived. The plaintiff need only to have alleged in his petition that the defendants had agreed to pay the debt, and the presumption then would have been that he would prove it.in the manner required by law, that is by a writing. Ansley v. Hightower, 120 Ga. 719(3). But when the pleader saw proper to set forth in the petition the writing xelied on, if the writing was not sufficient to satisfy the statute the petition was demurrable. The writing relied on to satisfy the statute of frauds need not, under the law of this State, state the consideration. Turner v. Lorillard Co., supra; Black v. McBain, 32 Ga. 128; Davis v. Tift, 70 Ga. 52. Whether'it is necessary to allege the consideration, in declaring on the contract, the want of consideration being matter of defense, need not be determined in the present case. In Black v. McBain, supra, the consideration was‘neither alleged nor proved, and it was held that the writing was sufficient to satisfy the statute, and that the granting of a nonsuit ivas error.

Judgment reversed.

All the Justices concur.