105 Ga. 421 | Ga. | 1898
Bass Brothers & Company sued William, Anthony, and Taylor Barrett upon a promissory note which contained a stipulation as follows: “ Should I at any time before the payment of this note become indebted to [the payees] on their books or otherwise, I bind myself to allow [them] to apply the first payments to the liquidation of the claims they may elect and determine.” Anthony and Taylor Barrett filed a plea which was substantially as follows: They did not sign the note as principals, but as securities only. At the time they signed, plaintiffs informed them that plaintiffs had already taken a mortgage on certain property belonging to William Barrett, the principal, being a mule, wagon, harness, and plow-stock then in possession of and owned by the principal; and plaintiffs made this statement for the purpose of inducing defendants to sign the note as sureties. They, relying on the statement as true, and knowing that, if true, they would be fully protected in signing the note and would not eventually have it to pay, did sign it with that understanding and belief, plaintiffs well knowing at the time that defendants so understood it. On February 20, 1895, plaintiffs took possession of the mule, wagon, harness, and plow-stock, and appropriated the same to their own use and benefit, without warrant or authority and without the consent of the principal or either of the sureties, thereby increasing the risk of tlio latter. The value of the property thus taken was sufficient to discharge the entire indebtedness represented by the note. On oral motion in the nature of a general demurrer the court struck the plea, and directed judgment to be taken in favor of the.plaintiffs against all of the defendants. The ruling of the court in striking the plea and entering judgment is assigned as error.
Judgment reversed.