101 Ga. 413 | Ga. | 1897
The Georgia State Building & Loan Association filed its petition against the American Investment & Loan Company, alleging that the defendant was indebted to the plaintiff in the sum of $471.00 on two guaranty bonds; that on the first of said bonds the defendant guaranteed to the plaintiff the payment of $400.00 in installments of stock and interest and premium due and payable by W. B. Carlton, and that Carlton only paid the sum of $172.60 under his contract, leaving due to the plaintiff by the defendant, under the condition ■of its guaranty bond, the sum of $227.40; that by the second bond the defendant guaranteed to the plaintiff the payment of $410.00 in installments of stock and of principal, interest and premium, under the contract of Callie L. Walker theretofore made with plaintiff, and that Callie L. Walker has only paid •the sum of $146.40, leaving a balance of $263.60 due to the plaintiff by the defendant on the second of said guaranty bonds. To this petition the defendant filed an answer, in effect admitting the execution of the bonds, but denying indebtedness thereunder.
The bonds sued on were the separate obligations of the American Investment & Loan Company, in the usual form of penal bonds, executed April, 1893. The conditions of each are practically similar. After certain recitals, each bond contains the following clause: “Now then, should the said principal promptly pay to the said obligee the installments of stock, interest and premium first falling due under the contract between said principal and said obligee, as and when the same ■shall become due and payable, until the amount so paid shall aggregate the sum of $400.00 (in the second bond $410.00), then this obligation to be void.” These guaranty bonds purport in the body of each to be, respectively, executed by W. B. Carlton and by Callie L. Walker as principal, while the American Investment & Loan Company is described in each bond as surety. In fact, as they appear in the record, they are not signed by Carlton nor by Walker. The condition in the bond referring to Walker, in addition to the payment of install-
The case, under the statement of facts above set out, was submitted to the judge below without a jury. His finding was in favor of the defendant. The plaintiff moved for a new trial, on the general grounds alone. The motion was overruled, and it excepted. We are therefore to consider whether the judgment for the defendant rendered by the judge is contrary to law and the evidence in the case.
The borrowers were in default; and while the association-had the right to collect from the guarantor each installment of stock, interest and premium as the same became due, it elected to proceed under the breach of the contract and to recover against the borrowers a judgment for the gross amount due; and it now contends that the obligation of the guarantor is to make good the difference between the amounts paid by the borrowers as installments of stock, interest and premium, and the amounts to which the guaranty was limited in each case, notwithstanding that, under its election to proceed against the borrowers for the default, it realized from the sale of the property an amount which, when added to the installments paid