Graham v. Nash Loan Co.

MacIntyre, J.,

dissenting. The petition here alleges a contract whereby the defendant agreed to and did actually assume the debt of her father, M. J. Cavey, “to the extinguishment of the debt of *523the said M. J. Cavey to petitioner.” This was not a “promise to answer for the debt, default, or miscarriage of another,” so as to bring the agreement within the statute of frauds and make it necessary that the agreement be in writing. The provision of the statute o£ frauds which requires that the promise to answer for the debt, default, or miscarriage of another must be in writing in order to bind the promisor does not include an original undertaking whereby a new promisor, for a valuable consideration, substitutes himself as the party who is to perform, and the original promisor is thereby released. See Williams v. Garrison, 21 Ga. App. 44 (93 S. E. 510); Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921); Daniel Sons & Palmer Co. v. Dickey, 6 Ga. App. 548 (supra); Harris v. Paulk, 10 Ga. App. 334 (73 S. E. 430); Holcomb v. Mashburn, 10 Ga. App. 781 (74 S. E. 307); Hicks v. Walker, 17 Ga. App. 391 (87 S. E. 152); Ferst’s Sons & Co. v. Bank of Waycross, 111 Ga. 229 (36 S. E. 773); Foote v. Reece, 17 Ga. App. 799 (88 S. E. 689); Jones v. White, 19 Ga. App. 456 (91 S. E. 793). Plaintiff alleges an agreement to pay, and it was not necessary that the agreement be in writing. Therefore, plaintiff could by parol evidence show that the writing attached was made with reference to the debt of M. J. Cavey. It is further alleged that all three of the parties agreed to the contract. The exhibit attached shows plainly that M. J. Cavey was released by the creditor, and interest waived, and the “lien on property” was “void.” The petition sets out a good cause of action.