8 Ga. 562 | Ga. | 1850
By the Court.
delivering the opinion.
The four defendants, who were the sureties of the complainant, answer the bill, and concur in saying, that they became his sureties for twelve hundred dollars, by signing the six hundred dollar bonds, as charged, which were delivered to him, (the plaintiff,); that he sold these bonds to Mr. Guignard, and received from him the money — they deny any knowledge of the usury (except Neifer, whose answer, in that regard, I shall presently refer to.) They all deny, most solemnly, that one dollar of the money thus borrowed came to their hands. They not only aver that he received it, but show what he did with it. They say that a mortgage was executed to them, as charged, to secure them against loss as his sureties, for the twelve hundred dollars ; that subsequently to its execution, the plaintiff solicited them to become his security for other debts, which three of them consented to do, upon his securing them by a proper entry or indorsement on the mortgage, which he agreed to make, and which they suppose was made ; that when the bonds sold to Guignard became due, they took them up by giving him their own obligations ; that under the second arrangement, by which they became plaintiff’s sureties for other debts, they, to wit : Geiger, Neiffer, and Tliroewitt, paid or assumed debts of his to the amount of some nine hundred dollars — they specify the debts ; (hat they do not owe him anything, but on the contrary, independent of what he owes them on account of their suretyship, he is indebted to them, individually, in different sums. They say that the mortgage was foreclosed for the amount of their liabilities on his account as his sureties.
Mr. Guignard, who is also a party to this bill, answers, that he loaned #1200 to the plaintiff, by purchasing his bonds, with defendants as securities, for six hundred dollars each ; that ther plaintiff himself delivered to him these bonds ; that he paid to him the money¡ to wit: -#1200. He denies that there was any usury
Neiffer, one of the defendants, and also one of the sureties, answers, in addition to this joint answer with the others, that he was present when the bonds were sold to Guignard by the plaintiff; that Guignard paid to him for them, $1200 ; “that is to say, (to use the words of the answer,) he saw the said Guignard deliver to said Jones a check on the Commercial Bank of Columbia for $1100, and pay him the sum of $100 in cash ; that out of the cash thus received by said, Jones, the said Jones returned to said Guignard the sum of $60, as the said Jones said, for the accommodation of the loan. Neiffer further, individually answering, says, “that the said John H. Jones, being indebted to him in the sum of $240, and upwards, that is to say, (going on to specify the several items of the indebtedness,) the said Jones placed in his hands the sum of $240, which, at the time, was supposed to be about the amount which the said Jonesowed him, but not being prepared for a full and final adjustment and settlement of said accounts, he, the said Neiffer, executed the due bill for $240, referred to in the bill, and delivered it to said Jones, as an acknowledgment that he had received that amount from him, to be applied to the above debts due by said Jones to him; and the said Neiffer avers, most positively, that such was the understanding of the parties at the time, and denies most positively that he received the said sum of $240 for any other purpose whatever, or that he was, or is, in any wise indebted to said John H. Jones.” Neiffer repeats, that the note was given simply as an acknowledgment of so much money received, as a matter of convenience, to be taken up upon final settlement with Jones, and says that in reference to that object, the note was drawn as it was — the negotiability being restrained.
These answers, so fortified and confirmed by each other, annihilate all the equity of the bill. Generally, then, I say, that the equity of the bill is sworn off, and the injunction was properly dissolved. The matter really requires no argument — the statements from the bill and answer are demonstration.
The answers of Guignard and Neiffer, particularly Neiffer’s,
The other point is in relation to the $240 note. The bill claims that this is due to him by Neiffer, and ought to be allowed as an offset to Neiffer’s claim on the fund as surety, raised on the foreclosure of the mortgage. But what does Neiffer say in his answer about this note 1 He says that he does not owe J ones anything ; that aside from what Jones owes him as his surety, he is indebted to him in a considerable sum ; that J ones, being indebted to him personally, and not as surety, paid him $240 on account of that indebtedness; that it being inconvenient at the time to come to a final settlement, the note claimed by Jones to be due to him for $240, was given as an acknowledgment of that sum then paid, to he taken up upon final settlement.
Let the Judgment be affirmed.