Opinion
34259.
DECIDED OCTOBER 24, 1952. REHEARING DENIED DECEMBER 12, 1952.
Action on contract; from Bibb Civil Court — Judge Butler. June 27, 1952.
Frank G. Wilson, Carl M. Story, for plaintiff in error.
Lewis Sell, contra.
The evidence authorized the finding that the plaintiff and defendant entered into a valid contract for the support of the defendant's illegitimate child, and the court did not err in overruling the motion for a new trial based on the general grounds.
DECIDED OCTOBER 24, 1952 — REHEARING DENIED DECEMBER 12, 1952.
Helen Plummer sued John Gray on an alleged oral contract. The amended petition alleged in substance: that the defendant was the father of the plaintiff's illegitimate child; that he admitted paternity of the child; that he promised to pay the plaintiff $14 every two weeks for the support of the child; that the plaintiff accepted such offer and caused a bastardy proceeding then pending against the defendant to be dismissed as having been settled; that the defendant made such payments from time to time, but at the date of the filing of this action the defendant owed the plaintiff for the last 12 weeks preceding the filing of the action at the rate of $7 per week, a total of $84, for which sum the plaintiff prayed. The defendant answered by a general denial.
The plaintiff testified in part: "I swore out a warrant for John to get him to support the child. When he found out about the warrant, John and I went down to the welfare department. John had been giving me a little bit of money along. When we got down to the welfare department, John talked to Miss Sara Yarborough. John told Miss Yarborough that he was willing to support the child and that he would give me $6 a week for the support of the child. We left the welfare department and went down to the city court. I dismissed the warrant and paid two dollars for the costs. John said that he would pay me back but he never did. John has not given me anything since we were down here the last time. Yes, he owes me $84 but it's not $7 a week for twelve weeks. That is right, it is $6 a week for fourteen weeks. John Gray has admitted that he is the father of the baby born June 26, 1950. I dismissed the bastardy warrant on March 18, 1950, based upon John Gray's promise to pay me $6 per week for the support of the child. John Gray has not paid me anything at all this year. We had this conversation about the warrant in Miss Sara Yarborough's office at the welfare department. I didn't say anything. John did all the talking. I just kept my mouth shut and didn't say anything. John agreed with Miss Yarborough that he would pay $6 a week for the support of the child. That was while we were there in the office. John was supposed to start paying me $6 a week sometime in June, 1950, and that would make about $600 in all that he owed and he has paid it all but $84." She also testified that the defendant was the father of the child.
Miss Sara Yarborough, an employee of the Bibb County Welfare Department, testified in part: "John and Helen visited my office sometime along about the middle of March, 1950, and told me that Helen was going to have a baby. . . John readily admitted paternity of the child that Helen was carrying and said that he was willing to help Helen as he had been doing and would give her $12 per week for her support. He did not mention anything about the support of the child. Helen agreed to dismiss the warrant that she had sworn out for John and it was my understanding that they were going to the courthouse to do that when they left my office. . . John said that he had been living with Helen about the last fifteen months, that his wife knew it and understood it because she was a very understanding wife. He said nothing whatsoever about any payments for the support of the child. Helen did join in the discussion there in my office."
The defendant testified in part: "I remember going down to the welfare department with Helen Plummer and talked with Miss Yarborough. I do not like to dispute no white lady's word, but I did not say that I was the father of this child. I told her that it was like this, that I did not know whether this baby was mine or not, but that Helen had been bothering me out there on my job and if she would dismiss her warrant, I would give her three or four dollars to leave me alone. . . I heard Helen say that I had given her some money before; I have never given that girl one thin dime. . . I don't believe that this child is mine. . . I don't owe her any money at all." The jury returned a verdict for the plaintiff for $84. The defendant's motion for a new trial on the general grounds was overruled conditioned on the plaintiff's reducing the amount recovered by $12, which was assented to by the plaintiff. The defendant excepts to the overruling of his motion for a new trial.
The plaintiff in error contends that no consideration for the contract was sufficiently shown because the evidence failed to show that the dismissal of the bastardy proceedings was considered in the alleged making of the contract. While we think that the plaintiff's testimony, "I dismissed the bastardy warrant on March 18, 1950, based upon John Gray's promise to pay me $6 per week for the support of the child," together with the other testimony and circumstances of the case, was sufficient evidence to authorize the jury to find that such was the consideration (see Jones v. Peterson, Lott Paulk, 117 Ga. 58, 43 S.E. 417), the jury were also authorized to find from the evidence that the defendant admitted paternity of the child, and paternity is good consideration in a contract for a child's support. Code, § 74-202.
It is also contended that the plaintiff's testimony that the agreement was for the payment of $6 a week and Miss Yarborough's testimony that the agreement was for $12 a week, when the amended petition alleged a contract for the payment of $7 a week constituted such a material variance as would defeat recovery. We do not agree. The jury were authorized to believe the plaintiff, that the agreement was for $6 a week and disbelieve the other, and her testimony unobjected to had the effect of amending the petition to allege an agreement to pay $6 a week. Napier v. Strong, 19 Ga. App. 401 (2) ( 91 S.E. 579); City National Bank Trust Co. of Miami v. Orr, 39 Ga. App. 217, 218 (5) ( 146 S.E. 795). The conflict between the plaintiff's testimony and that of her witness, Miss Yarborough, did not preclude a finding for the plaintiff, as the jury could have accepted the plaintiff's testimony and rejected that of the other witness. See Holton v. State, 61 Ga. App. 654, 655 (3) ( 7 S.E.2d 202).
It is also contended that no valid contract was proved because it was not shown for what length of time it was to operate. The law places on the father of an illegitimate child the duty and responsibility to support the child until it reaches the age of fourteen (Code, §§ 74-202 and 74-303), and in this case, in the absence of any provision as to the contract duration, the law supplies the length of duration of the contract, as the jury was authorized to find that one consideration for the agreement was the dismissal of the warrant, and that the contract was in lieu of the bond required by law (Code, § 74-303) or criminal prosecution.
Contrary to the plaintiff in error's contention, the essential element of assent of the parties was shown by the evidence. The court did not err in overruling the motion for a new trial.
The judgment of the court is adhered to on rehearing.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.