143 Ga. 278 | Ga. | 1915
(After stating the foregoing facts.) There is much conflict and some confusion in the authorities in regard to adding new makers or obligors to an instrument after its original execution. After there has been a complete execution and delivery, and even sometimes before there has been a complete delivery to the obligee, it has been held that such a change is material as rendering all the promisors jointly and equally liable to the obligee as well as among themselves, and as tending to lessen the ultimate liability of the maker or makers. It has been held that the addition of a surety to a complete bond after execution and delivery by the original sureties is an alteration which will discharge the latter. Oneale v. Long, 4 Cranch (U. S.), 60 (2 L. ed. 550); Anderson v. Bellenger, 87 Ala. 334 (6 So. 82, 4 L. R. A. 680, 13 Am. St. R. 46). See the discussion in Taylor v. Johnson, 17 Ga. 521, though the exact point seems not to have been finally decided in that ease. On the other hand, it has been declared that the question is controlled by a consideration as to the character of the change, and whether it is in the body of the instrument or otherwise; the extent to which the instrument has been completed in its execution, and of authority to be implied from the condition of the instrument, 'as to its state of completeness in connection with tli'e relation of the parties. Accordingly it has been held in some decisions that if a surety be added to a promissory note before it has been "fairly launched” so as to become an available security for the purpose for which it was intended, as where such a change was made while the instrument was in the hands of the principal in order to discount it, it will not be considered an alteration which will discharge the original surety. 2 Cyc. 219, 221; Ward v. Hackett, 30 Minn. 150 (14 N. W. 578, 44 Am. R. 187), where it was said: "We have been referred to no case, and have found none, going so far as to hold, where a surety signs a promissory note and intrusts it to his principal, and the principal, while the instrument is still inchoate and has not become effectual as a contract by delivery, procures an additional signer, that this would be a material alteration and release the first surety.” Crandall v. First National Bank of Auburn, 61 Ind. 349; Miller v. Finley, 26 Mich. 249 (12 Am. R 306); McCaughey v. Smith, 27 N. Y. 39; Snyder v. Van Doren, 46 Wis. 602 (1 N. W. 285, 32 Am. R. 739); Graham v. Rush, 73 Iowa, 451 (35 N. W. 518); 2 Dan. Neg. Inst. (6th ed.) § 1389.
Judgment affirmed.