Thomas v. Moore

Sutton, J. 1. The motion to dismiss the writ of error on the ground that there is no sufficient assignment of error is without merit, as there is enough in the bill of exceptions and the transcript of the record, together, to enable the court to ascertain the real question here to be decided. Code, § 6-1307. 2. In a suit on a promissory note, with the expressed consideration of "for value received,” and promising unconditionally to pay a definite amount, a plea by the defendant setting up a prior or contemporaneous oral agreement that the plaintiff agreed to furnish to defendant work sufficient to pay his necessary living expenses while taking a course in mechanical engineering; that the plaintiff failed to furnish said work to the defendant; that the defendant paid the plaintiff $100 for which he received no benefit, as he had to abandon the engineering course because the plaintiff failed to furnish him work to pay his living expenses (the $100 not being paid on the note sued on) ; that the plaintiff, instead of furnishing the defendant with work to pay his necessary expenses, applied the $100 to the payment of board, lodging, and other incidental expenses for the defendant, the prayer in the plea being for a judgment for said $100 and $50 expenses incurred in making the trip from his home in Georgia to Chillicothe, Missouri; and there being no [542] allegation that the agreement to furnish the work was any part of the consideration of the note, or that there was any other consideration for the promise to furnish the work, Held, that such plea did not set forth any valid defense to the note sued on, and the judge did not err in striking the plea on an oral motion, and in directing the verdict for the plaintiff, after introduction in evidence of the note sued on. See Planters Bank v. Brown, 22 Ga. App. 495 (16 S. E. 328); Sikes v. Payton, 23 Ga. App. 721 (99 S. E. 310) and cit.; Dinkler v. Baer, 92 Ga. 432 (3) (17 S. E. 953) ; Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86) ; Code, § 38-501. Decided October 24, 1938. J. P. Fowler, for plaintiffs in error. Thomas O. Davis, Glenn R. Roberts, contra. Judgment affirmed. Stephens, P. J., and Felton, J., oonour.