Janney v. Dugger , 86 Ga. App. 414 ( 1952 )

Felton, J.,

dissenting. The statement of facts by the majority opinion does not give a correct picture of the exact nature of count 2 of the petition. It is necessary to ascertain the nature of the contract sued on to determine whether the plaintiffs proved the case as laid. Count 2 alleges: that the defendant is indebted to the plaintiffs in the sum of $544.45 with interest from March 7, 1947; that on or about February 7, 1947, the defendant paid $200 upon a debt due by him to the plaintiffs and agreed thereupon to pay the plaintiffs the balance thereon; that about March 7, 1947, the defendant renewed his promise to pay the sum sued for if the plaintiffs would forego lien foreclosure proceedings. It appears from the above allegations that count 2 is an alleged cause of action based on a contract or account upon which the defendant was alleged to have been originally bound, and that the defendant promised to pay the exact balance claimed by the plaintiffs (making the claim an account certain as to amount) upon the plaintiffs’ promise not to foreclose a lien. The evidence did not authorize a finding on count 2, for the reason that the original contract for the goods purchased was between the plaintiffs and an independent contractor, for breach of which the defendant was not primarily liable or subject to an action in personam. It is clear that the recovery on count 2 is based on a contract entirely different from the one sued on. The contract recovered on was one by the defendant whereby he agreed to pay the debt of an independent contractor, which is an entirely different contract from the one sued upon. I think that the court erred in denying the motion for a new trial on the general grounds.