Poole v. Corker

15 Ga. App. 622 | Ga. Ct. App. | 1915

Wade, J.

1. A contract in tlie form of a letter, reciting .that, in consideration of assistance rendered to the signer by the addressee, in the transfer of certain agencies, “as covered by a contract of even date,” the signer agreed that if certain shares of stock held by the addressee should not pay as much as 10 per cent.'per annum, he would take it off the addressee’s hands when so requested, at any time after November 1, 1912, and would pay for it not less than par value, is not void as lacking in mutuality, when considered in connection with a contemporaneous contract, signed by both of them, by the terms of which the addressee of the letter accepted this stock as a part of the purchase-price of certain property sold by him to the writer.

Decided January 20, 1915.

Complaint; from municipal court of Atlanta. May 16, 1914.

Arnold & Donehoo, for plaintiff in error. II. B. Troutman, contra. .

2. Properly construed, the contract pleaded by the petitioner as the basis of his action was one of continuing guaranty of the value of the stock therein referred to, and it was not invalid, as insisted, upon the ground that it was indefinite and uncertain as to the time for performance; for the contract of guaranty would, be enforceable at any period within the statute of limitations.

3. The judgment was contrary to evidence and without evidence to support it. The contract on which the action is based can not be construed otherwise than as a contract of guaranty; and, the rights of a guarantor being stricti juris, proof that the plaintiff had demanded compliance with the antecedent condition of the contract of guaranty, by tendering to the defendant his certificates of stock and demanding payment therefor in accordance with the terms of the contract, was absolutely essential; and there being no evidence, either direct or circumstantial, to this effect, the plaintiff wholly failed to sustain his case.

Judgment reversed.