Beck v. Johnston

118 Ga. App. 541 (1968)

164 S.E.2d 342

BECK v. JOHNSTON.

43635.

Court of Appeals of Georgia.

Submitted May 6, 1968.

Decided October 11, 1968.

Rehearing Denied October 25, 1968.

Durden & Durden, Roy Benton Allen, Jr., A. N. Durden, for appellant.

Malone, Drake & Malone, Thomas Wm. Malone, for appellee.

EBERHARDT, Judge.

George E. Johnston filed suit against Mrs. W. T. Beck alleging that prior to his death her husband had operated a business known as Beck Cab Company, in connection with which he became indebted to plaintiff in the sum of $4,854, that after her husband's death defendant had continued operation of the business and assumed responsibility for the payment of the debt, that certain payments were made by her and that there was still outstanding an indebtedness of $4,554, a statement thereof being attached, for which plaintiff sought judgment. Defendant moved to dismiss the complaint on the ground that it did not state a claim on which relief could be granted, the basis of the motion being that plaintiff failed to allege that the assumption of her husband's debt by defendant was in writing, as it was required to be by the Statute of Frauds. Held:

The Statute of Frauds is a defensive matter which must be taken advantage of by special plea or defense. Code Ann. §§ 81A-108 (c), 81A-112 (b); Tift v. Wight & Weslosky Co., 113 Ga. 681 (39 SE 503); Oedekerk v. Muncie Gear Works, 179 F2d 821. Whether the defense, if made, is good will appear from admissions made or from the evidence produced. Consequently the motion was properly denied. Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260).

Judgment affirmed. Felton, C. J., and Whitman, J., concur.