Camp v. Howell

| Ga. | Dec 15, 1867

Walker, J.

When this case was before this Court in 1860, 31 Ga. R., 663, a new trial was granted on the sole ground that the charge of the Court below assumed the fact that plaintiff knew Camp was surety for the company. The case was sent back in order that the jury might pass upon the issue whether at the time Howell agreed to give time to the company, he knew that Camp was only security. This issue has been passed upon by the jury, and the verdict is in favor of Camp. The Court set aside the verdict as being against the evidence, and his judgment granting a new trial is brought up for review.

1. We think the verdict is supported by the evidence, and therefore the Court should not have granted a new trial. Ho complaint is made of the charge of the Court; the case was submitted to the jury as favorably for the plaintiff, as the law would authorize, and the verdict being sustained by the evidence should stand.

2. When this case was brought to this Court before it sqemed to have been taken for granted, on all hands, that the contract to give time to the principal was a discharge oí the surety, if, at the time of making the contract to give time, the plaintiff knew that Camp was surety. This time, however, that proposition is disputed, and it is insisted that the giving of the note for usurious interest, and past payment thereof, in consideration of twelve months delay to sue, did not discharge. The contract of surety-ship is one of strict law, Revised Code, section 2122, and any change of the nature or terms of the contract, without the consent of the surety, discharges him; a mere failure by the Creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies, unless for a consideration, will not release the surety, Rev. Code, secs. 2125 2126. A failure to sue “for a consideration” releases the surety. Was not a note with security for one hundred and sixty dollars a consideration ? Was not the payment of one hundred dollars on this usurious note a consideration ? The plaintiff contracted to give time in consideration of the promise of.legal interest on his debt, and the usurious interest promised to be paid him • and this, without the consent of the surety, discharged the surety. The case of Stallings vs. Johnson, 27 Ga. R., 564, fully sustains the Court below in holding that the contract to give time was sufficient to discharge the surety; provided, the plaintiff, at the time of making it, knew that Camp was surety. The jury having found that he did know it, and their finding being sustained by the evidence, the Court did wrong to grant a new trial.

Judgment reversed.