
    40854.
    BROWN v. WALL.
    Decided September 21, 1964
    Rehearing denied October 5, 1964.
   Jordan, Judge.

This was a suit on account by an attorney to recover out-of-pocket expenses incurred by him while representing the defendant’s father in a damage suit. The defendant filed an answer in which he denied the indebtedness, and the case proceeded to trial before a jury who returned a verdict for the plaintiff. The court denied the defendant’s motion for new trial, and the exception is to that judgment. Held:

The evidence authorized the finding that the defendant orally agreed to pay the out-of-pocket expenses sued for in consideration of the plaintiff’s; undertaking to prosecute a damage suit for the defendant’s father. Whether the defendant’s agreement was within or without the operation of the Statute of Frauds (Code § 20-401 (2)) is immaterial as this issue was not raised in the trial court by the filing of a plea of the Statute of Frauds and such issue cannot be raised for the first time in a ground of the motion for new trial. Tift v. Wight & Weslosky Co., 113 Ga. 681 (39 SE 503); Hale v. Lipham, 64 Ga. App. 796 (14 SE2d 236). The trial court did not err in denying the motion for new trial. See Davis v. Tift, 70 Ga. 52, 53 (2a); Pope v. Ellis, 34 Ga. App. 185 (129 SE 11); Guy v. Riley, 51 Ga. App. 404 (180 SE 624).

Judgment affirmed.

Bell, P. J., and Eberhardt, J., concur.

E. B. Shaw, for plaintiff in error.

Morton P. Levine, contra.  