41 Ga. App. 34 | Ga. Ct. App. | 1930
(After stating the foregoing facts.) By the act of 1838 it was provided that “whenever it shall be shown by words expressed in the body or conclusion of said written contract or other instrument in writing, that it was the intention of the party or parties subscribing the same, to become bound by, or to execute a writing, obligato^, or sealed instrument, though no scroll or seal has been annexed to said written contract or other instrument,” it should be considered an instrument under seal. It was further provided by that act that any such instrument having “a scroll or other representation of a seal annexed thereto instead
After the change in the statute, and after the act of 1856 came into effect, it was held by the Supreme Court in Ridley v. Hightower, 112 Ga. 476 (37 S. E. 733), that “one who wrote his name upon the back of a promissory note merely for the purpose of guaranteeing its payment, but whose indorsement, because of his not being a party to the paper, was neither essential nor proper to a due transmission of the title thereto, was a surety only, and not liable on the paper as indorser,” and that the liability of such surety was barred after six years from the time the right to sue accrued, “unless the surety also contracted under seal; and he did not so contract if there was no seal nor anything intended as a-representation thereof after his signature.” That decision distinguishes its ruling from that in the Milledge case on the basis that the undertaking in the Milledge case was that of a technical indorser, whereas the undertaking in the Ridley case was merely that of a surety, to whom the note was not made payable, and whose signature was neither essential nor proper to the due transmission of the title to the instrument. Later, in Baldwin Fertilizer Co. v. Carmichael, 116 Ga. 762, supra, the Supreme Court, in a ease where the liability was that of a technical indorser, as in the Milledge case, followed the ruling in that ease, distinguishing the ruling in the Ridley case, and planted its decision strictly upon the ground that the liability in the Carmichael case was that of a strict, technical indorser, and that the decision in the Milledge case was left unimpaired so far as regarded a case to which ft was directly and strictly applicable.
Counsel for plaintiff in error undertake to bring the instant, case within the purview of the Milledge case on the theory that if a technical indorser, in signing his name without a seal for the purpose of transferring title of an instrument payable to himself, must be compelled to acknowledge and accede to the nature and
Judgment affirmed.