
    WILLINGHAM SASH & DOOR COMPANY v. DREW.
    1. Where one undertakes to perform for another service or labor for a given sum any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity.
    2. A employed B to build a house for the sum of $1,400. A paid the $1,400 before the completion of the house; and it becoming apparent that B would be unable to comply with the contract without suffering loss, B was told by A to estimate what sum would be necessary to complete the building, and upon being informed that $350 would be required, B was told to complete the building and this amount would be paid in addition. Under this latter arrangement B was to do only what was contemplated by the original contract. After the $1,400 had been paid and before the payment of the $350, A was served with a summons of garnishment in a suit against B, and judgment was rendered in favor of the garnishee. Held: (1) That the agreement to pay the additional sum of $350 was a nudum pactum. (2) That at the time of the service of the summons of garnishment the relation of debtor and creditor did not exist between A and B.
    Argued June 11,
    Decided June 27, 1903.
    
      Garnishment. Before Judge Roberts. .Irwin superior court. September 2, 1902.
    
      L. Kennedy, H. Lawson, and JS. Cutís, for plaintiff.
    
      D. B. Jay, for defendant.
   Cobb, J.

The facts of this case sufficiently appear from the second headnote. The case is controlled by the principle laid down in the case of Davis & Company v. Morgan, 117 Ga. 505.

Judgment affirmed.

All the Justices concur.  