152 S.E.2d 654
42356.Court of Appeals of Georgia.ARGUED OCTOBER 4, 1966.
DECIDED NOVEMBER 14, 1966.
The petition as amended alleged a cause of action sufficient as against the renewed general and special demurrers.
ARGUED OCTOBER 4, 1966 — DECIDED NOVEMBER 14, 1966.
Action on note. Fulton Civil Court. Before Judge Webb.
On May 25, 1965, B. H. Haley, J. H. Stewart and Mrs. Annie Stephens Haley brought an action against Harry Gerson, Maurice Rubenstein and Herbert R. Blount to recover the $33,628.06 balance allegedly owed them on a promissory note, plus interest and attorney’s fees. The petition as amended, together with attached exhibits, shows the following: By a sealed contract executed June 29, 1956, the plaintiffs sold to John F. Burrell all the assets of the Haley-Stewart Electrical Co. for a cash payment plus a three-year, sealed, promissory note in the amount of $56,932.31. By an unsealed agreement of July 9, 1956, the maker, Burrell, was granted the right to extend the note’s maturity date beyond the original three years. On April 30, 1958, the plaintiffs and the defendants executed an unsealed contract, stipulating that the defendants, as all of the stockholders of the aforesaid company, “are indebted to [the plaintiffs] in the sum of $45,314.75, being the balance due on a note dated the 29th day of June, 1956, which note was for the principal sum of $56,932.31, the maker of said note being one John P. Burrell and the balance of said indebtedness having been assumed by [defendants] when [defendants] purchased the stock in said corporation. . .” The contract further provided
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for a continuation of the terms of the note, with a reduction of the amount of the monthly payments for a period of one year from May 1, 1958. It is alleged that the defendant’s last payment was made on February 7, 1962, and that the debt is past due and unpaid after demand therefor. On July 19, 1966, the trial court overruled defendant Gerson’s renewed and additional general and special demurrers to the petition as amended, from which judgment he appeals.
Rose Silverman, George S. Stern, for appellant.
Talley Kirkland, Tarleton Zion, for appellees.
FELTON, Chief Judge.
“[W]here a debtor conveys property to another person, and the vendee as a consideration, in whole or in part therefor, agrees to pay the debts of the vendor, a creditor of the vendor may enforce the assumption agreement against the vendee by a suit in equity with proper pleadings and parties. Such a vendee takes the assets cum onere, impressed with a trust in favor of the creditor. [citations].” (Emphasis supplied.)Alexander v. Dinwiddie, 214 Ga. 441, 443 (2) (105 S.E.2d 451) Code Ann. § 3-108, as amended by Ga. L. 1949, p. 455. Even if the Alexander v. Dinwiddie case, supra, which was decided subsequently to the 1949 amendment to Code § 3-108, makes all third party beneficiary actions equitable proceedings, where assumption agreements alone form the basis of the actions, the present suit was properly brought as an action at law, since it seeks to recover, not on the assumption agreement between the maker of the note, Burrell, and the defendants, but rather on the note itself and the contract between the plaintiffs and the defendants, whereunder the latter promised to pay the balance of the indebtedness on the note. Since the latter contract created a debtor-creditor relationship between the parties plaintiff and defendant, the requisite privity of contract exists without the joining of the maker of the note as a party, without whom the plaintiff’s claim can still be adjudicated.
Regardless of whether the applicable statute of limitation period was six or twenty years, or whether it be based upon the note itself or the contract to assume payments on the note, it had not expired as of the date of the filing of the action,
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since there was no breach of the contract, out of which the action could arise, until after the defendants’ alleged last payment on February 7, 1962.
The petition as amended alleged a good cause of action and the court did not err in its judgment overruling the renewed and additional general and special demurrers thereto.
Judgment affirmed. Frankum and Pannell, JJ., concur.