33 Ga. App. 690 | Ga. Ct. App. | 1925
(After setting forth the foregoing stated facts.) In our opinion the petition was not subject to any ground of the demurrer interposed. The extension of credit by the plaintiff to Austin in excess-of the sum of $500 did not release Craton. “If one assumes to pay a definite amount of the indebtedness of another, it is none of his concern whether the debt thus assumed is greater or less than the actual indebtedness.” Oglesby v. South Georgia Grocery Co., 18 Ga. App. 402 (5) (89 S. E. 436). See also Scarratt v. Cook Brewing Co., 117 Ga. 181 (1) (43 S. E. 413).
AYe think the contract of Craton with the plaintiff was one of suretyship and not of guaranty, and therefore the action could be maintained against both defendants jointly. There was no benefit flowing to Craton, and he was not primarily, but only secondarily, liable to the plaintiff. A contract of suretyship “differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor.” Civil Code (1910), § 3538. “A fundamental distinction between a guaranty and suretyship is that in a contract of guaranty the person obligating himself to pay the debt of another is primarily, and not merely secondarily, liable for its payment.” Watkins Medical Co. v. Marbach, 20 Ga. App. 691 (1 b) (93 S. E. 270). See also Wright v. Shorter, 56 Ga. 72, 77.
AYe think also that the contract of suretyship did not limit the plaintiff to give credit for only $500 to Austin, although it did limit the surety’s liability to that amount. “AYliere an absolute promise is made to become responsible for a certain amount, with
Judgment reversed.
