145 Ga. 861 | Ga. | 1916
(After stating the foregoing facts.)
“Augusta, Ga., Dec. 6th, 1913.
“Received in trust from the Citizens and Southern Bank of Augusta, Augusta, Ga., notes amounting to twenty-seven thousand
The testimony of B. L. Kockwell, vice-president of the plaintiff bank, was that it was the usual custom to turn over notes in this manner to a bank for collection, even though they were not due. In the present case it will be observed that the notes were turned back, according to the receipt which was taken, to the bank of which the plaintiff in error was president and J. P. Armstrong was cashier. It was shown by uncontradicted evidence that these notes came into the hands of the plaintiff bank as collateral after Patrick Armstrong had signed as surety the note sued on. It is true that the date of the transfer stamped upon this note was the date of the note sued on; but Rockwell, vice-president of the plaintiff bank, testified that the Campbell notes were not among the notes deposited as collateral for the note sued on at the time of its execution; that on the day after the date of the note given by the Irish-American Bank he called upon J. P. Armstrong for other collateral; and that it was then that the Campbell & Co. notes were brought to him. Patrick Armstrong, who was president of the Irish-American Bank and who was supposed to have knowledge of these transactions, did not deny the facts thus stated by Rockwell ; in fact he did not testify in the case at all. And besides, it appears from the list of customers’ notes attached to the note sued
It is inferable from the testimony of Rockwell, vice-president of the plaintiff bank, that J. P. Armstrong, the cashier of the Irish-American Bank, took from the list notes amounting to $4,637.00, whereby the amount of the list was reduced to $23,000, and that no other collateral was substituted for these notes. Just when this was done is not clear from the testimony; but even if done after the note sued on was given and the collaterals were deposited, this would not operate to discharge the surety, in the absence of proof of the value of such notes; and there was no such 'proof. And in order to make the creditor liable for the loss of the value •of collaterals which he had turned back to the cashier of the debtor, there should have been produced evidence showing the value of the notes. Fisher v. George S. Jones Co., 108 Ga. 490 (34 S. E. 172); Mauck v. Atlanta Trust & Banking Co., 113 Ga. 242 (38 S. E. 845); Johnson v. Longley, 142 Ga. 814 (83 S. E. 952).
The striking of James P. Armstrong as a party defendant, against whom a judgment in personam was sought, is not a matter of which the surety can complain. The plaintiff could have maintained this suit in the first instance against the principal in the noté sued on and Patrick Armstrong. The principal and surety on a note are jointly and severally liable, and it is not necessary to sue them jointly; and if James P. Armstrong could be omitted from the suit in the first instance, there is no reason why his name could not be stricken after suit was brought against him.
Nor did the failure of the plaintiff to prove its claim in the bankruptcy proceedings against James P. Armstrong release Patrick Armstrong, his cosurety upon the note-sued on. See Yeatman v. Savings Institution, 95 U. S. 764 (24 L. ed. 589).; Case note in 25 L. R. A. (N. S.) 139.
We have examined the other grounds upon which the movant contends that as surety he was released from his obligation' to pay - the principal debt, and none of them are found to be valid. ' .
There was ho merit in the assignments of error on the admission of testimony, nor in the assignments of error .upon- the charge
Judgment affirmed.