6441 | Ga. Ct. App. | Dec 2, 1915
1. Where a partnership between two persons is dissolved by the retirement of one partner, and the other continues the business and agrees to assume the debts of the firm, the retiring partner becomes a surety for his copartner. Preston v. Garrard, 120 Ga. 689 (48 S.E. 118" court="Ga." date_filed="1904-07-14" href="https://app.midpage.ai/document/preston-v-garrard-3399503?utm_source=webapp" opinion_id="3399503">48 S. E. 118, 102 Am. St. R. 124, 1 Ann. Cas. 724); Sheppard v. Bridges, 137 Ga. 615, 631 (74 S.E. 245" court="Ga." date_filed="1912-02-17" href="https://app.midpage.ai/document/sheppard-v-bridges-5578318?utm_source=webapp" opinion_id="5578318">74 S. E. 245).
2. A creditor of the partnership who has notice of the dissolution and of the agreement by the continuing partner to assume the debts of the firm is bound to accord, to the retiring partner all the rights of a surety. “Hence, if, without his knowledge or consent, the creditor, upon a sufficient consideration, extends the time of payment of the firm indebtedness, the retiring partner is released from the indebtedness, and the creditor must thereafter look only to the firm assets and to the individual assets of the continuing partner.” Preston v. Garrard, supra. See also Civil Code, §§ 3164, 3544; MacIntyre v. Massey, 11 Ga. App. 458 (75 S.E. 814" court="Ga. Ct. App." date_filed="1912-09-17" href="https://app.midpage.ai/document/macintyre-v-massey-5605889?utm_source=webapp" opinion_id="5605889">75 S. E. 814); Tatum v. Morgan, 108 Ga. 336, 337 (33 S.E. 940" court="Ga." date_filed="1899-07-22" href="https://app.midpage.ai/document/tatum-v-morgan-5569230?utm_source=webapp" opinion_id="5569230">33 S. E. 940); Crawford v. Gaulden, 33 Ga. 173.
(а) Neither the original plea nor the proposed amendment alleged that there was a consideration for the extension of the time of payment of the debt.
(б) The original plea set up no defense whatever, and there was nothing to amend by.
3. It does not affirmatively appear from the record that the proposed amendment to the plea was verified in accordance with the provisions of section 5640 of the Civil Code.
4. The court did not err in refusing to allow the proffered amendment to the original plea, and in thereafter striking the plea and entering up judgment against the defendant. Judgment affirmed.