57 Ga. 198 | Ga. | 1876
This was a suit brought by Woolfolk against the railroad company for the recovery of a debt alleged to be due by the company to him for work performed in building a piece of the company’s road in Pike county, Alabama, or rather on a guaranty of the solvency of certain notes received by Wool-folk from the company for that work. The same case was here before, at the July term, 1875: 55 Georgia Reports, 122, and was then sent back because the plaintiff was, in the judgment of this court, improperly non-suited. On its return to the superior court the plaintiff, Woolfolk, recovered a verdict for $6,437 00; the railroad company moved for a new trial on many grounds, the motion was overruled, and defendant excepted.
The record is very voluminous, but for the purposes of this decision it is not necessary to consider and to decide all the points nor to recite the whole testimony. The plaintiff contended that he contracted with John H. Howard, president, to grade the road in Pike county, at a certain price, and took in payment thereof certain notes on citizens of that county, which Howard, for the company, guaranteed; that he did the work, tried to collect the notes, failed for the reason that the parties became insolvent, and that the company owe him the debt. The defendant says that he was to take, and did take, the notes in final payment, and that it never guaranteed their solvency or collectibility, and that thus the plaintiff' is fully paid off, and has no right of action. It says, too, that the guaranty was beyond the power of Howard to make, and that the company never ratified it, and besides, that as it was a promise to pay the notes given by others, it was void, not being in writing.
Then, again, the evidence shows that the verdict is for too much, and, in this respect, against the evidence. With the error of the court on the statute of limitations staring us in the face, we cannot write it off and let the balance remain. It would be unjust to defendant, and therefore illegal. We reverse the judgment on the ground that the court erred in the charge on the statute of limitations. This was an Alabama contract. On the point when suit should be brought on a guaranty of insolvency, see 6 Alabama Reports, 745.
Judgment reversed.