80 Ga. 209 | Ga. | 1888
Flanders Brothers brought their action in the city court of Macon against H. C. Brown, J. L. Cherry and John F. Grace (the plaintiffs in error here), on a promissory note made by George F. Cherry and the plaintiffs in error; George F. Cherry having died before the suit was brought. The plaintiffs in error pleaded to this action that they were only securities on the note, and that George F. Cherry was the principal; that Flanders Brothers had not proceeded to have administration upon the estate of Cherry, and had allowed the estate to be removed or disposed of, thereby increasing the liability of the sureties ; and that after the note became due, they had notified Flanders Brothers to proceed against the estate of the principal by suit, and that Flanders Brothers had agreed to proceed as requested, but had failed to do so.
The court below substantially ruled that the. request by these plaintiffs in error to Flanders Brothers to proceed on the note against the estate of George F. Cherry, and their promise to do so, raised no legal obligation on the part of Flanders Brothers to take out letters of administration on the estate of Cherry; and the court instructed the jury that this was not a good defence to the note. A verdict was had for Flanders Brothers, and a motion for a new trial was made; and this ruling of the court is the main ground relied upon in the motion.
We think the ruling of the court on this point was correct. If the plaintiffs in error desired administration upon the estate of George F. Cherry, they ought to have proceeded to obtain administration themselves. There was no obligation upon the part of Flanders Brothers to do so; they did not agree with the sureties that they would do so; they said they would proceed on the note. If any administration was necessary to protect the property of Cherry from being squandered, the sureties ought to have
Judgment affirmed.