90 Ga. 674 | Ga. | 1893
1. Good sense, good morality and good law are one and the same so long as they are not sundered violently by legislation or ignorantly by judicial error. Their unity and identity, so far as one of the questions in this case is concerned, we find still intact. There is no statute to drive, neither is there any precedent to lead, decision into absurdity or injustice. We can and do hold that accommodation indorsers who represent their insolvent principal in procuring a loan of money for the principal’s use, upon a promissory note which they cause to be made in his name and which they indorse
2. "With respect to the want of protest, it is true that the letter of the code, §2781, makes protest necessary-in order to bind indorsers upon any' bill or promissory-note payable at a bank, thus,- in effect, putting all such paper on the footing of foreign bills of exchange as to this commercial solemnity. But the requirement as to protest was not, we think, intended to be more comprehensive than the requirement as to notice. Taking the' letter of the statute and adhering to that, both protest and notice would be essential in such a case as the present, as the statute makes no exception. The true construction of the statute, however, is that it lays down a general, not a universal rule. It could hardly have been intended to overthrow the whole principle of special cases, standing on special facts, a principle so long and so deeply rooted in commercial law. If this was not designed as to notice, there is no reason to think it was as to protest, for why should protest for dishonor be needed where notice of dishonor is dispensed with?
Inasmuch as the declaration alleged facts which were a sufficient excuse for the absence of notice and protest, the amendment offered and disallowed was of no consequence.
8. These directors, being accommodation indorsers and theref ore mere sureties relatively to each other as well as to the corporation their common principal, are liable to contribution by virtue of the code, §2151, although the indorsed notes were payable at a chartered bank. The corresponding section in the code of 1868 is section 2123, and the identical question was ruled in Freeman v. Cherry, 46 Ga. 14.
4. Touching the statute of limitations .a question of some apparent, though of no real difficulty, arises. Treating the action as founded upon the notes, and as sustainable thereon by reason of the doctrine of subrogation, the suit would be in time, the same having been brought within six years from the date and maturity of the notes. Code, §2917; Sublett v. McKinney, 19 Texas, 438. On the other hand, if the action is to be treated as based upon an account for money paid by the plaintiff’ at the defendant’s implied request and for his use, it is barred because it was not commenced within four years from the time of such payment. Code, §2918.
We rule that the action is one for money paid by the plaintiff for the defendant’s use, and not one founded directly on the notes and their indorsements; consequently that it is barred.
5. Putting subrogation out of view, the right of each paying indorser to sue severally for his own pro rata share of the contribution which the defendant ought to make towards bearing the common burden, is not questionable upon principle. Neither is it upon authority so far as we know. If each pays his own money and thus the debt is discharged by the joint contribution, the fund paid does not thereby become a joint fund as to its ownership. It ought to be no reason why any one should not recover a due allowance for what he has advanced out of his own separate means, that others have made similar advancements out of theirs. Perhaps all might sue jointly if they thought proper, but surely they are not bound to do so. This action was well and rightly brought as to the -party plaintiff, on' the construction of the declaration wrhich we have just announced, and there was no cause for dismissing it save that it was barred by the statute of limitations. That was sufficient cause. Judgment affirmed.