McIntosh v. MARVIN M. BLACK COMPANY

114 Ga. App. 777 (1966)

152 S.E.2d 804

McINTOSH v. MARVIN M. BLACK COMPANY.

42391.

Court of Appeals of Georgia.

Argued November 8, 1966.

Decided November 28, 1966.

Rehearing Denied December 13, 1966.

Cohen, Kohler, Barnwell & Chambers, John W. Chambers, for appellant.

T. Charles Allen, for appellee.

FELTON, Chief Judge.

1. An action brought by the assignee of a written contract in its own name must affirmatively show that the transfer or assignment was in writing in order to withstand a proper demurrer. Foster v. Sutlive, 110 Ga. 297 (34 SE 1037); Thornton v. Reeve, 41 Ga. App. 446 (153 SE 436); Alropa Corp. v. Richardson, 58 Ga. App. 656, 657 (199 SE 666); Fenner & Beane v. Nelson, 64 Ga. App. 600, 607 (13 SE2d 694). Accordingly, where the sole allegation as to the assignment of the contract sued on was that the action was brought by "Marvin M. Black Company as assignee [sic] of Marvin M. Black and Joeanne R. Black, d/b/a Marvin M. Black Company, a contractor," the court erred in its judgment overruling the defendant's demurrer to the petition.

2. The demurrer to the petition having been erroneously overruled, the subsequent trial and the verdict and judgment *778 for the plaintiff, from which the defendant appeals, were nugatory.

Judgment reversed. Frankum and Pannell, JJ., concur.