Duggan v. Monk

5 Ga. App. 206 | Ga. Ct. App. | 1908

Hill, C. J.

(After stating the foregoing facts.)

1. There is no merit in the motion to dismiss the bill of exceptions. There is direct and specific exception and assignment of error as to the ruling of the court in directing a verdict for the .plaintiff, as well as an exception and an assignment of error as to the ruling of the court in striking the answers. This is sufficient. Lyndon v. Georgia Ry. & Electric Co., 129 Ga. 353 (58 S. E. 1047).

2. Plaintiffs in error, in the brief, rely only upon the assignment of error in the judgment striking their plea of suretyship, ■and the defense set up by them as sureties, that the consideration .given for the note had totally failed. We think the court erred in striking this plea. While the fact of suretyship did not appear ■nn the face of the note, yet the defendants were clearly entitled to show that they were only sureties. Civil Code, §2969; Whitley v. Hudson, 114 Ga. 668 (40 S. E. 838). We think also that the plea filed by the sureties, setting up a total failure of consideration to the principal, was, if established by proof, a good defense to a suit on the note. The plea setting up a total failure of consideration is not a personal plea, which can only be made by the principal in a contract, but is a defense that the surety, as well as the principal, can set up; and where the contract between the principal and the creditor fails by reason of want of consideration, the collateral suretyship contract also fails. 1 Brandt on Suretyship,, §465; Stearns on Suretyship, 148.

The judgment of the court, in striking the plea of the defendants that they were sureties and that there was a total failure of' consideration of the note as to the principal, and in directing a. verdict for the plaintiff on the note, was erroneous.

Judgment reversed,.