116 Ga. 762 | Ga. | 1902
The plaintiff brought suit, on March 7,1901, against Carmichael on a contract of which the following is a copy:
“For value received, I transfer the within note to Baldwin Fertilizer Co., and guarantee it as free from any defense that could be made under sec. 2785 of the Code of Georgia, and also guarantee payment in full on the day it is due. This June 20, 1894.
J. F. Carmichael, per Jas. Davison, Atty.”
This contract was attached to the note to which it referred, and Carmichael was the payee of this note, which was a sealed instrument and was dated May 11,1894. Pending the case in this court, Carmichael died, and his administratrix was made a party in his stead. The petition described Carmichael as a “guarantor,” and the suit was brought against him as such. The defendant made a motion to dismiss the petition, on the ground that the contract sued on was barred by the statute of limitations, and upon the further ground that the record in the case showed, which was conceded to be true, that the principals were non-residents of Greene county and had never been sued on the contract. Pending the consideration of this motion, the plaintiff offered an amendment to the petition, seeking to strike the word “guarantor” wherever it occurred in the petition, and to substitute the word “indorser,” thereby changing the petition so as to allege that defendant was liable to plaintiff as indorser instead of guarantor. The court refused to allow the plaintiff to amend, and dismissed the petition on the grounds stated in the motion to dismiss. To each of these rulings the plaintiff excepted.
Under the former decisions of this court, the contract sued on seems to be one of indorsement. It was made, according to the allegations of the petition, for the purpose of transferring the note to the plaintiff in satisfaction of a claim held by it against the defendant, and the mere use of the word “guarantee” will not make the contract one of guaranty. The case of Patillo v. Alexander, 96 Ga. 60, seems to be controlling in principle on the question.
We are also, of opinion that the plaintiff should have been allowed to amend ,so,.as to charge the defendant as an indorser instead of a guarantor, if indeed such an amendment was an indispensable prerqqjp^ife to recovery. The cause of action set forth in the petition was the. right to recover on the contract set out therein.
Judgment reversed.