166 Ga. 889 | Ga. | 1928
To the answer as amended the plaintiff filed demurrers, general and special, addressed to every feature of the case. These demurrers cover many pages of the typewritten record. It is doubtful if legal skill or human ingenuity could suggest an addition to the multiplicity of objections urged, not only to want of specific specification in the allegation of each and every paragraph, but also in the presentation of the contention that the answer as a whole fails to set forth any'defense whatever. We shall not attempt to quote or refer to each and every one of these numerous objections. It suffices to say that the answer could not properly be dismissed upon general demurrer, and that the special demurrers, so far as meritorious, were met by the amendments offered by the defendant. Many of the special demurrers present nothing for the consideration of the court, because they fail to point out what additional information was sought, or wherein and whereby the paucity of allegation in any way hampered or prevented the plaintiff in his legal right to be informed as to evidence which it would devolve upon him to rebut. We shall deal first with the general demurrer. Can it be said that the defendant, under the allegations of her answer, had no defense to the suit upon the two notes given by her in renewal of the original note ? This original note was not given to the plaintiff in this case. On its face his name does not appear either as maker, indorser, or security. No liability can attach to the plaintiff if he was a bona fide holder of the original note. Being such a holder of the original note, he would have the right to
Mrs. Crandall alleges that she renewed the notes only upon the express condition that each and all of the sureties who shared her liability on the original note should again join her in sharing this liability. This raises a question of fact as to whether all of the sureties on the original note did sign the note in suit, or whether the note was delivered to Shepard or taken by him. In other words, whether there was delivery on the part of Mrs. Crandall of the note now sued upon in accordance with the condition upon which she signed it. But in advance of the trial, and upon demurrer, it is admitted, as the face of the note itself shows, that neither G. D. Hartley nor the Interlocking Toggle Bim Company appears upon the note now in suit. Where a party signs only upon condition that certain others are to share his liability, no matter in what capacity, whether as maker or surety, this person is not bound either as maker or surety, as the case may be, unless the restrictive cpndition precedent to his agreement to sign the obligation is'literally complied with: This has been held in this State, and many decisions of the Supreme Court of the Hnited States enforce the doctrine in strong language. In advance of a trial there can be no denial of the statement of Mrs. Crandall upon this point. What connection is there between the original note and the renewal in suit? Taking the facts as stated, the original note was given for a specific purpose. Solely for the reason that Mrs. Crandall was
The rulings in headnotes 3, 4, 5, 6, and 7 do not require elaboration. After the court had sustained the demurrers and dismissed the answer of the defendant the direction of the verdict followed as a matter of course. However, the error of the court in dismissing the answer rendered all further proceedings nugatory.
Judgment reversed.