123 Ga. 272 | Ga. | 1905
(After stating the facts.) If the liability of Willis was that of a guarantor, the court did not err in dismissing the suit, because a guarantor must be sued in the county of his residence. Geiser Mfg. Co. v. Jones, 90 Ga. 307. If he was liable as a surety, then he was properly joined in the suit with the principal in the county of the latter’s residence. In some respects contracts of suretyship and of guaranty are identical, and the terms - “ surety ” and “ guaranty ” are oftentimes colloquially used as interchangeable expressions of collateral liability. A guarantor has the same right as a surety by written notice to compel
It might be urged, from the definition of the contract of suretyship quoted from the code (supra), that the obligation of the surety is to pay the debt of the principal, and not to perform undertakings other than payments of indebtedness, and for .that reason the liability of Willis is only that of a guarantor. This distinction can not be sound. In the case of a forthcoming bond the undertaking of the principal is to deliver the prop
That there might be no doubt as to. the character of the action or the nature of the contract declared on, the plaintiff offered an amendment to his petition, alleging that the “ signing of said Willis [was] contemporaneous with and a part of the making of said contract, there being no contract between the said Fields and the said Cox until the signing thereof by said Willis, and the said Willis signing the same really as surety for said Cox and as joint contractor with him, and became surety for said Cox and joint contractor with him, and without any consideration or benefit flowing to said Willis, and without any consideration except the credit extended to said Cox in said contract, it being the intention of all of said parties that said Willis should be such surety and joint contractor, and not a guarantor within the strict meaning of the term, irrespective of the words used therein; and if the words used in said contract import a different legal meaning, they were so used by mistake of all parties.” This amendment in no way contradicted the terms of the writing, was germane to the cause of action set forth in the plaintiff’s petition, and should, we think, have been allowed. Treating it as presenting the real truth with regard to the nature of the contract into which the parties entered, the conclusion is irresistible that the plaintiff had a right to hold
Judgment reversed.