JOHNSON v. STAPLETON COMPANY. [132 Ga. 164, 63 S. E. 827.] FRAUDS, STATUTE OF—Agreement to Pay Debt of Another. The defendant having undertaken and agreed to pay to the plaintiff certain debts due by a third party to the plaintiff, in consideration of an agreement by the plaintiff to pay the debt of another party which was due the defendant, and the plaintiff having executed and performed his part of the undertaking, by giving a credit upon the debt which the defendant had assumed and agreed to pay, for an amount which was equal to the debt that the latter had assumed and agreed to pay to the former, which credit so entered was agreed to and accepted by the defendant, the undertaking and agreement first recited, upon the defendant's part, was a valid and binding obligation, though in parol. (p. 190.) (Syllabus by the court.) Payton & Hay, for the plaintiff in error. S. R. Stevens and W. A. Dodson, contra. 164 BECK, J. The plaintiff in the court below sued out an attachment against the defendant, and subsequently filed his declaration alleging, in substance, that the defendant was indebted to the plaintiff in the sum of one hundred and eighty-four dollars and forty-four cents principal, on an account; that the account was due and unpaid; that the items of the account were the amounts of separate accounts against certain alleged individuals, who were employés of the defendant and to whom the defendant was indebted for wages; that the defendant agreed and promised, in consideration of the plaintiff's promise to pay to the 165 defendant an account which defendant held against one Bob Simmons, amounting to the sum of one hundred and five. dollars, to pay to the plaintiff the several accounts referred to, which were due to the plaintiff from the said employés of the defendant; and that the plaintiff fully executed and performed its promise to defendant by allowing defendant credit on the accounts of the said employés, which the defendant had agreed to pay, "and that said credit was accepted by the defendant," the original debtors agreeing thereto. The defendant demurred to the declaration, on the ground that the "account does not appear to be the debt of W. A. Johnson, but appears to be the debt of others, and there does not appear from the declaration to be any writing signed by this defendant to pay said debts"; and that the obligation, as set out and relied upon to support the action, was within the statute of frauds, and that plaintiff could not recover, as the promise on the part of the defendant was not in writing, but rested in parol. 1. The court below did not err in overruling the demurrer to the declaration. When the defendant undertook and agreed to pay the accounts of certain parties who were indebted to the plaintiff, in consideration of the plaintiff's promise to pay the debt of another party to the defendant, and the plaintiff, in compliance with the agreement thus entered into, gave the defendant credit upon his books for the amount of the debt due to the defendant by the other party referred to, and the defendant, in whose favor this credit was entered, assented thereto, and received the benefit of the credit so entered, the obligation and promise of the other party to the agreement, though in parol, was valid and binding: Goolsby v. Bush, 53 Ga. 353; Ferst v. Bank of Waycross, 111 Ga. 229, 36 S. E. 773. 2. Considering all the testimony in this case, together with the deductions which the jury were authorized to make therefrom, we cannot say that the verdict is without evidence to support it, and that the grant of a new trial is demanded. Judgment affirmed. All the justices concur. The Application of the Statute of Frauds to Original Promises to answer for or pay the debt of another is discussed in the note to Sherman v. Alberts, 153 Mich. 361, 126 Am. St. Rep. 486. HAWKINS v. STUDDARD. PRACTICE-New Trial, Order Sustaining or Overruling Demurrer. A ruling of the court in sustaining or overruling a demurrer, and in allowing or disallowing an amendment to pleading, cannot be made the ground of a motion for a new trial; but direct exceptions should be filed to such ruling, if a review of it is to be had. (p. 193.) RES JUDICATA-Demurrer, Effect of Order Overruling.— Where a petition was filed for specific performance of an alleged contract for the sale of land, claimed to be evidenced by a writing copied in the petition, to which a demurrer was filed, asserting that such contract was within the statute of frauds on specified grounds, and the court passed an order overruling such demurrer: held, that while such order stood unreversed, it was proper for the court, on the trial, to overrule objections of the defendant to the admission of such writing in evidence, when such objections were on the same grounds on which the demurrer was based. (pp. 193-195.) INTOXICATION, Evidence of.-When one of the questions to be passed on by a jury is whether or not, at the time one of the parties to the case signed a writing, he was deprived of reason on account of being intoxicated: held, (a) that the acts and sayings of such party immediately before and after such time are admissible to illustrate such question; (b) that evidence that such party generally talked incoherently, had no consecutive thought, and was without business capacity while under the influence of whisky, was not admissible to be considered in determining such question. (p. 195.) WRITINGS, Construction of and Evidence to Vary.-Where a writing signed by an owner of land purported to evidence a contract of sale thereof, acknowledged receipt of part of the purchase money, and specified no time when the balance thereof was to be paid: held, (a) the legal import of such contract was that such balance was to be paid presently; (b) evidence of a prior or contemporaneous parol agreement that such balance was to be paid at a subsequent definite time was not admissible to vary the legal import of the writing, that such payment was to be made presently. (p. 197.) PAYMENT, Construction of Contract Respecting.—Where a writing signed by an owner of land purported to evidence a contract of sale thereof, acknowledged receipt of part of the purchase money, and specified no time when the balance was to be paid, the legal import of such contract was that the balance was to be paid presently, and a mere parol agreement between the parties to the writing, made subsequently to its execution and delivery, fixing a subsequent specific time for the balance to be paid, was not admissible to illustrate the time within which the balance was to be paid. (p. 198.) FRAUDS, Statute of-Contract, Modifying by Parol Agreement. "A contract which must, under the statute of frauds, be in writing, and which, accordingly, is put in writing and duly executed, cannot be subsequently modified by a parol agreement." (p. 199.) STATUTE OF FRAUDS Nonperformance.-"Mere nonaction is not performance, either partial or complete, and will not, therefore, take a parol contract out of the statute of frauds." (p. 200.) STATUTE OF FRAUDS-Description of Land-Jury, When may Judge of Its Sufficiency. It is a question for the jury to determine under the evidence whether the description of land contained in a receipt is such that, by the aid of extrinsic evidence, it can be located and identified with reasonable certainty. (By the editor.) (p. 200.) APPEAL AND ERROR-Evidence, Failure to Object to, When Overruled. An assignment of error complaining of the admission or rejection of testimony over objections will not be considered when it does not appear that any objection was made at the time the testimony was offered. (p. 201.) (Syllabi by the court except where stated to be by the editor.) Foster & Foster and George & Anderson, for the plaintiff in error. Samuel H. Sibley and Q. L. Williford, contra. 266 HOLDEN, J. Defendant in error, Studdard, brought suit against the plaintiff in error, Hawkins, alleging among other things the following: Hawkins bargained to sell to Studdard, and Studdard agreed to buy from Hawkins, a tract of land in Morgan county, known as the Hanleiter place, which is fully described in the petition. The price agreed on was fifteen dollars per acre. In pursuance of, and in confirmation of, the sale, Studdard paid Hawkins twenty-five dollars, and Hawkins received it in pursuance of the sale and as part of the purchase money. As a memorandum of the transaction, Hawkins executed and delivered. to Studdard a writing as follows: "Received of John F. Studdard twenty-five dollars closing purchase of the Hanleiter place containing 187.6 acres one tract, and one 4 acres more or less, at $15 an acre. "C. M. his X HAWKINS. mark 267 "Contract made and signed in presence of "G. W. OXFORD, "N. P. and ex-off. J. P." Thereafter and in execution of the purchase, and within the time limited thereby, Studdard tendered to Hawkins two thousand eight hundred and forty-nine dollars, remainder of the amount due on the purchase money, and had a conveyance of the land prepared, but Hawkins declined to receive the money or to execute a title to Studdard. No want of form was urged in the tender, and Studdard has at all times been ready and willing and has offered to pay the sum due. Hawkins has remained in possession of the land and has received the profits of the annual value of five hundred dollars. Since the contract was made lands have increased in value. Studdard prayed that Hawkins be required to specifically perform the contract and execute to Studdard a title to the land, and that plaintiff recover possession of the land and mesne profits. Studdard filed to his petition an amendment, which was allowed, wherein he made substantially the following allegations: On the afternoon of the day of the sale, the same being a reasonable time thereafter, and Studdard being ready and willing to pay Hawkins the balance of the purchase money, Hawkins stated he had arranged to cultivate the land the current year, and suggested that payment be deferred until December 1st. Acting on this request and suggestion, Studdard, on December 1, 1905, the same being a reasonable time, tendered Hawkins the full amount of the purchase money and a conveyance for execution. Hawkins is estopped to deny that December 1st was a reasonable time within which to make the tender. The land is worth twenty-five dollars per acre. Studdard prayed, if the contract should not be specifically performed, that damages be awarded. Upon the trial a verdict was rendered in favor of the plaintiff for specific performance; whereupon a decree was rendered requiring Hawkins to specifically perform his contract set forth in the pleadings, by forthwith conveying to the plaintiff the premises described in the petition, upon the payment by Hawkins to Studdard of the remainder of the purchase money, to wit, two thousand eight hundred and fortynine dollars. Hawkins made a motion for a new trial, and to the order of the court denying the same he filed exceptions. 1. The original motion for a new trial filed by the defendant had in it, in addition to the usual grounds, several grounds wherein complaint was made that the court committed error in overruling demurrers filed by defendant to plaintiff's original petition, and 268 in allowing, over defendant's objection, amendments to plaintiff's petition, and in refusing to allow defendant to make certain amendments to his answer. Exceptions to the allowance of amendments over objections, and to a judgment overruling a demurrer, cannot properly be made the ground of a motion for a new trial: Gillis v. Powell, 129 Ga. 403, 58 S. E. 1051. It has also been ruled by this court that an exception to the refusal to allow an amendment to a plea cannot be made the ground of a motion for a new trial: Turner v. Barber, 131 Ga. 444, 62 S. E. 587. In the trial of a case there are two distinct processes: one is the ascertainment of the main issues to be tried, and the other is the trial of these issues. The main issues are made by the pleadings, and the making of these issues does not properly relate to the trial itself. The rulings of the court in sustaining or overruling a demurrer, and in allowing or disallowing an amendment to pleading, cannot be made the ground of a motion for a new trial; but direct exceptions should be filed to such rulings, if a review of them is to be had. We cannot, therefore, consider the special grounds above referred to in the original motion for a new trial, no exceptions having been filed to the rulings complained of, so far as disclosed by the record. 2. One of the grounds of the motion for a new trial is that the court erred in admitting in evidence, over movant's objection, the receipt set out in the petition, a copy of which receipt is as follows: Am. St. Rep., Vol. 131-13 |