159 Ga. 202 | Ga. | 1924
(After stating the foregoing facts.)
We are of the opinion that the court properly sustained the general demurrer to the petition in this ease. We have set forth at some length, in the statement of facts, the allegations made in the petition as to the contention of petitioners in regard to what they insist was the actual agreement or contract contained in the guaranty. An examination of those allegations will show that there is no distinct allegation of an agreement or contract entered into before the guaranty was signed. The doctrine that the allegations shall be most strongly construed against the pleader has a real
Moreover, we are of the opinion that if the written guaranty had been reformed so as to speak thé contract'as the plaintiffs insist it was and should have been written, the plaintiffs would not have been entitled to recover a judgment for any amount. In the guaranty which the plaintiffs seek .to have the court by its decree to establish as the true contract between the parties, is the following: “and it is hereby agreed that this guaranty shall, be cancelled and surrendered to me whenever M. Marcus shall have paid to Frank & Co. the indebtedness which he now owes to them growing out of the business conducted by him at Reidsville, Georgia.” That indebtedness, as appears from the petition, -was the sum of $5700, and subsequently to the signing of the guaranty the plaintiffs received $3705.00, which amount was paid prior to the bringing of this suit and after the execution of the guaranty. - This last sum was 65 per cent, of the old indebtedness, and “was accepted by plaintiffs in full compromise settlement and satisfaction of the old indebtedness, in accordance with a general compromise agreement reached between Marcus and all of his creditors whose in
We are, consequently, of the opinion that the court did not err in sustaining the other ground of the general demurrer, wherein it is insisted that even if a reformation should be had establishing the written guaranty which the plaintiffs insist contains the true agreement between the parties, they would not be entitled to a judgment against the defendant.
Judgment affirmed.