Opinion
43635.
SUBMITTED MAY 6, 1968.
DECIDED OCTOBER 11, 1968. REHEARING DENIED OCTOBER 25, 1968.
Complaint. Dougherty Superior Court. Before Judge Sabados.
Durden Durden, Roy Benton Allen, Jr., A. N. Durden, for appellant.
Malone, Drake Malone, Thomas Wm. Malone, for appellee.
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 S.E. 503); Oedekerk v. Muncie Gear Works, 179 F.2d 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 S.E.2d 260).
Judgment affirmed. Felton, C. J., and Whitman, J., concur.