McIntosh v. Marvin M. Black Company

Full title: McINTOSH v. MARVIN M. BLACK COMPANY

Court: Court of Appeals of Georgia

Date published: Nov 28, 1966

152 S.E.2d 804 (Ga. Ct. App. 1966)

152 S.E.2d 804

Opinion

42391.

ARGUED NOVEMBER 8, 1966.

DECIDED NOVEMBER 28, 1966. REHEARING DENIED DECEMBER 13, 1966.

Action on contract. DeKalb Civil and Criminal Court. Before Judge Morgan.

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 S.E. 1037); Thornton v. Reeve, 41 Ga. App. 446 ( 153 S.E. 436); Alropa Corp. v. Richardson, 58 Ga. App. 656, 657 ( 199 S.E. 666); Fenner Beane v. Nelson, 64 Ga. App. 600, 607 ( 13 S.E.2d 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 for the plaintiff, from which the defendant appeals, were nugatory.

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

ARGUED NOVEMBER 8, 1966 — DECIDED NOVEMBER 28, 1966 — REHEARING DENIED DECEMBER 13, 1966.