Opinion
40854.
DECIDED SEPTEMBER 21, 1964. REHEARING DENIED OCTOBER 5, 1964.
Action on account. Fulton Civil Court. Before Judge Parker.
E. B. Shaw, for plaintiff in error.
Morton P. Levine, contra.
This was a suit on account by an attorney to recover out-of-pocket expenses incurred by him while representing the defendant's father in a damage suit. The defendant filed an answer in which he denied the indebtedness, and the case proceeded to trial before a jury who returned a verdict for the plaintiff. The court denied the defendant's motion for new trial, and the exception is to that judgment. Held:
The evidence authorized the finding that the defendant orally agreed to pay the out-of-pocket expenses sued for in consideration of the plaintiff's undertaking to prosecute a damage suit for the defendant's father. Whether the defendant's agreement was within or without the operation of the Statute of Frauds ( Code § 20-401 (2)) is immaterial as this issue was not raised in the trial court by the filing of a plea of the Statute of Frauds and such issue cannot be raised for the first time in a ground of the motion for new trial. Tift v. Wight Weslosky Co., 113 Ga. 681 ( 39 S.E. 503); Hale v. Lipham, 64 Ga. App. 796 ( 14 S.E.2d 236). The trial court did not err in denying the motion for new trial. See Davis v. Tift, 70 Ga. 52, 53 (2a); Pope v. Ellis, 34 Ga. App. 185 ( 129 S.E. 11); Guy v. Riley, 51 Ga. App. 404 ( 180 S.E. 624).
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.