Lovelace v. Smith

39 Ga. 130 | Ga. | 1869

Warner, J.

This Avas a suit instituted in the Court below on a guardian’s bond, against the principal and his security, to recover the amount of a judgment alleged to have been rendered against the guardian. When the judgment was offered in evidence, it appeared to have been rendered against the defendant therein, in his individual capacity, and not as guardian. Objection having been made to the introduction of the judgment in evidence, for the purpose of charging tire guardian and his security in a suit upon the bond, for a breach thereof, the plaintiff’s counsel then made a motion to the Court for leave to amend the judgment, upon the ground that it was rendered upon a note signed by the defendant, Smith, in his individual capacity, but, in the body thereof, promised to pay the plaintiff the sum of money specified therein, “ as guardian,” without stating for whom he Avas guardian. The Court refused the motion to amend the judgment, and then non-suited the plaintiff’s case upon the evidence offered, as contained in the judgment, to charge the guardian and his security in a suit upon the bond, to recover the amount of such judgment as claimed by the plaintiff. The judgment offered in evidence Avas rendered against Smith, in his individual capacity, and the question is, Avhether it could'have been amended so as to be entered up against Smith, as guardian, upon the statement of facts disclosed by the record. The notes on which the judgment was rendered read as follows: “ I, as guardian, promise to pay John H. Lovelace or bearer, etc.,” and were signed “ Charles A. Smith.” Story on Promissory Notes, states the rule in- such cases to be, that, “ As to trustees, guardian’s, executors, and administrators, and other persons acting en autre droit: they are, by our law, generally held personally liable on promissory notes, because they have no authority to bind ex directo the persons for whom, or for whose benefit, or for whose estate they act, and hence, to give any validity to the note, they must be deemed personally bound as makers. It is true, that they may exempt themselves from personal responsibility by using clear and explicit words to show that intention; but in the absence of such words, the law will hold them bound. Thus, if an executor, or administrator should malee or indorse a note, in his own name, adding thereto the words “ as executor,” or “ as administrator,” he would be personally responsible thereon. If he means to limit his responsibility, he should confine his stipulation to pay out of the estate f’ Story on Promissory Notes, sec. 63. A promise to pay, “ as guardian,” comes within the same principle. The more especially is this so, under the special provisions of the Eevised Code. By the 1821 section, it is declared that “guardians may make contracts for labor or services with persons of color, or with white persons, for the benefit of the estates of their wards, upon such terms as they may deem best; and all such contracts, made in good faith, shall be a charge upon and bind said estate, whenever the same are approved by the Ordinary of the county.” The 1828 section of the Code declares that “ the guardian cannot borrow money and bind his wards therefor, nor can he, by any contract other than those specially allowed by lato, bind his ward’s property, or create any lien thereon.” The object sought to be accomplished here is, to bind the ward’s estate, (that is to say, some ward’s estate, for the name of the ward is not stated in the notes,) by the individual contract of Smith, which, in our judgment, cannot be done in view of the facts of this case. There was no error, therefore, in the refusal of the Court to allow the judgment to be amended so as to bind the ward’s estate, nor in granting the non-suit for the want of evidence to entitle the plaintiff to recover the amount of the judgment in a suit therefor, on the guardian’s bond.

Let the judgment of the Court below be affirmed.