Hancock v. Allen , 29 Ga. App. 611 ( 1923 )

Bell, J.

1. The evidence to the effect that the plaintiff entered into an agreement with the defendant whereby the latter would sell certain fertilizers of and for the former to another on credit, and that they would share equally the profits of the sale and the losses, if there should be any, resulting therefrom, tended to establish a partnership between the plaintiff and the defendant, rather than an .agreement by the latter to answer for the debt of the third person to whom the fertilizers were sold, and was in no way affected by the statute of frauds. Floyd v. Kicklighter, 139 Ga. 133 (76 S. E. 1011); Civil Code (1910), § 3155.

2. A suit in a justice’s court on a summons with an account attached thereto, by which it appears that the plaintiff claims a liability against the defendant for one half of the value of certain fertilizers described in the account, is sufficient pleading upon which to admit evidence of the character indicated in. the preceding paragraph, with additional evidence by which the plaintiff seeks to establish the liability of the defendant therefor as the latter’s share of the loss sustained. by the partnership in the sale of the fertilizers. Such a suit puts the defendant “upon some notice of the subject-matter of the complaint that he is called upon,to answer.” Williams v. George, 104 Ga. 599 (3) (30 S. E. 751); Southern Express Co. v. Briggs, 1 Ga. App. 294 (57 S. E. 1066); Hendrix v. Elliott, 2 Ga. App. 301 (58 S. E. 495); Civil Code (1910), § 4715.

3. The evidence being in conflict, there was no error in the action of the superior court judge in sustaining the certiorari at the instance of the defendant, but he would not have been authorized to make a final disposition of the ease. Cochran v. Minter, 10 Ga. App. 337 (73 S. E. 551); Civil Code (1910), § 5201; Bass Dry Goods Co. v. Electric Storage Battery Co., 123 Ga. 640 (52 S. E. 579); Pittman v. Alexander, 19 Ga. App. 475 (91 S. E. 910).

Decided February 16, 1923. Wesley Shropshire, for plaintiff in error. O. D. Rivers, contra.

Judgment affirmed on doth Mils of exceptions.

Jenlcins, P. J., and Stephens, J., concur.