Prior v. Muse

Bloodworth, J.

(After stating the foregoing facts.) Under the agreement between the plaintiff and the defendant there was no substitution of one debtor for another; there was no release of the Oglesby Grocery Company from its obligation to pay the plaintiff; there was no substitution of the defendant in place of the grocery company, because it continued to occupy its relation to the plaintiff as debtor and to pay to him dividends. The bank was not a party to the agreement between the plaintiff and the defendant, and could have sued the grocery company and the defendant, and could have obtained a judgment against both. The petition does not show such detriment to the plaintiff or such benefit to the defendant as would operate as a consideration for the alleged agreement upon which suit was brought, nor does it show any facts which take the agreement out of the statute of frauds. There is no allegation in the petition that, because of the promise of the defendant to make certain payments to the plaintiff, he refrained from bringing suit against the grocery company and the defendant. The alleged agreement of the defendant was a collateral undertaking, and not an original one, whereby a new promisor for a valuable consideration was substituted as the party who was to perform, and the original promisor was thereby released. Strauss v. Garrett, 101 Ga. 307 (28 S. E. 850); Cook v. Weatherford, 28 Ga. App. 207 (110 S. E. 506); Palmetto Mfg. Co. v. Parker, 123 Ga. 800 (51 S. E. 714); Stovall v. Hairston, 55 Ga. 11 (1, 2); Coldwell Co. v. Cowart, 138 Ga. 233 (2), 240 (2) (75 S. E. 425); Davis v. Tift, 70 Ga. 52 (2); Williams v. Garrison, 21 Ga. App. 44 (93 S. E. 510).

The court erred in overruling the demurrer to the petition.

Judgment reversed.

Broyles, C. J., and Lulce, J., concur.