Opinion
32788.
DECIDED FEBRUARY 2, 1950.
Attachment; from Twiggs Superior Court — Judge Rowland. July 1, 1949.
R. A. Harrison, S. Gus Jones, for plaintiff in error.
James D. Shannon, contra.
1. There being no evidence authorizing a finding that the defendant was a non-resident of Georgia, the court erred in directing a verdict to the effect that he was a non-resident.
2. The contract sued on being without consideration to the extent of the balance due thereon, the court erred in directing a verdict against the defendant and in overruling his motion for a new trial.
DECIDED FEBRUARY 2, 1950.
This case involves issues arising out of the traverse to the only ground of an attachment which the plaintiff sought to prove, and on the issues raised by the declaration in attachment and the answer thereto. The amended declaration alleged indebtedness on what it called a promissory note, as follows: "Oct. 6, 1947. I turn over to W. C. Moore all rights to operate Standard Oil Station, Cochran, Georgia, for the sum of $975.00. $100.00 paid in cash, Balance of $875.00 to be paid within next five months. (Signed) Mr. Jesse M. Allen, (Signed) Mr. W. C. Moore, Witness by: Johnnie N. Moore, James R. Allen." The answer set forth want and partial failure of consideration and accord and satisfaction or rescission. By agreement all issues were tried together. The court directed a verdict in favor of the plaintiff for $875 and interest and against the traverse of the ground of the attachment, to wit, non-residence. The defendant excepted to the overruling of his amended motion for a new trial.
1. There was no competent evidence to prove that the defendant was a non-resident of Georgia, and the court erred in directing a verdict to the effect that he was.
2. There was no demurrer to the declaration, and the question whether the instrument sued on is too indefinite to be enforced because no time is specified, is not raised by a motion for a new trial.
3. The court erred in directing a verdict for the plaintiff on the merits of the case. The conclusions demanded by the evidence are that Mr. Allen did not have any rights concerning the operation of the filling station which he could legally sell. He operated it by authority from the Standard Oil Company. Mr. Moore could only operate it with permission from the Standard Oil Company and did so. Furthermore the evidence shows without dispute that the Standard Oil Company put the defendant Moore out of the station before the final payment to Mr. Allen was due. Since Mr. Allen had nothing he could sell, the note or contract was without consideration if it was given solely for the right to operate the station. If it was given for additional things such as merchandise, and pretermitting the question whether the terms of the contract could be added to by parol testimony, the defendant admitted that he received merchandise worth about $100.
The court erred in directing the verdicts for the plaintiff and in overruling the defendant's motion for a new trial.
Judgment reversed. Worrill, J., concurs. Sutton, C. J., concurs in the judgment.