Marietta Savings Bank v. Janes, 66 Ga. 286

Marietta Savings Bank v. Janes

66 Ga. 286 | Ga. | 1881

JACKSON, Chief Justice.

This action was brought by the Marietta Savings Bank against C. G. Janes, to recover the sum due on a promissory note made by Janes as administrator on his father’s estate. As originally brought, it sought to charge him as-administrator, but the words charging him in that character were stricken by the plaintiff, and it proceeded against him individually. Janes pleaded that he gave the note sued on merely to renew a note his father had given Waddell, and on the promise by letter of Waddell that he would not hold Janes personally liable, but only go against the estate for the money. * The letter is as follows :

“Marietta, Ga„ April 18th, 1877.

My Dear Charles: Your letter of the nth instant is received,, and its contents give me satisfaction. Send me your note as administrator of your father’s estate, and it shall never in any way or manner prejudice you individually. I am surprised to infer from your intimation that the estate is so much embarrassed.

Yours ever truly, J. D. WADDELL.”

*289Thereupon the note sued on was enclosed in a letter to Waddell, and is in these words:

“ One day after date, as administrator of W. F. Janes, deceased, I promise to pay J. D. Waddell or bearer, one thousand and seventy-three dollars and twenty cents, for value received, this May the 8th, 1877. C. G. Janes, as administrator of W. F. Janes, deceased.”

Waddell transferred the note to the plaintiff after due.

Under charge of the court the jury found for the defendant, and a motion was made for a new trial on various grounds, the effect of which when analyzed is that the note could not be varied by the letter, and that the legal effect of the note as written is to bind the defendant individually.

1. We think that th.e letter was properly admitted. It is part of the contract. Even if it had rested in parol with no writing, it might have been admitted to show the entire contract, all of it not being expressed in the promissory note. Code, §2757, 54 Ga., 527; 59 Ib., 562. But it is not necessary in this case to go to that length. The entire contract here is in writing, though the writing is on two pieces of paper. It takes both writings to make the real contract of the parties, and the legal effect is the same as if one paper held the contents of the note and of the letter. Code, §3801. Construing them as one, the stipulation is not, under any circumstances, to hold the defendant individually liable, but to look only to the estate of his father. From the explanatory testimony as to the circumstances under which the note was "given, it is clear that it was simply to renew a debt not barred in the lifetime of the intestate, but growing old and in danger of being barred.

2. The letters of defendant to Waddell were lost by the latter, and the parol proof was clearly admissible for this reason if for no other

3. An administrator may renew such a debt and charge the estate. Code, §2542. This is the legal effect of the *290contract, and if the plaintiff saw fit to strike from the declaration the representative character of the defendant, he exercises a legal right, but must take the consequences of that amendment. If the estate should be insolvent, it is his misfortune, and he is in no worse condition than he would have been had he sued on the old debt before the statute would have barred him.

4. This bargain is not to hold the defendant liable personally. It is equivalent to a promise not to sue him individually. He is to be prejudiced in no way. The agreement is equivalent to a covenant never to sue, and that operates as a release. Code, §2861; 48 Ga., 631 ; 57 Ga., 140. The plaintiff received the note after due, and holds it subject to all defences against Waddell.

The charge of the court and the verdict of the jury are therefore clearly right, and the motion for new trial was properly overruled.

Judgment affirmed.