37 Ga. App. 554 | Ga. Ct. App. | 1927
Tbe contract involved in this case has been the subject of previous litigation between the parties and is fully set
The cause of action against the guarantor apparently accrued at the expiration of the contract between his principal and the company on December 31, 1914. It was not necessary that the plaintiff procure a judgment against the principal debtor in order to mature the cause of action against the guarantor. The stipulation in the contract of guaranty, that the written acknowledgment of the principal or any judgment against him should be binding and conclusive against the guarantor, had reference only to. the method of establishing the correctness of the account, and was not a statement of a condition or conditions precedent to a suit against the guarantor. Counsel for the plaintiff contends that it was necessary to show the insolvency of the principal in order to establish the liability of the guarantor, and that the plaintiff was entitled to a suspension of the statute of limitations for a reasonable time for the purpose of ascertaining whether the principal was insolvent or not. See Mobile &c. R. Co. v. Jones, 57 Ga. 199 (2); Hines v. Johnston, 95 Ga. 629, 642 (23 S. E. 470). Whether in a suit on a contract of guaranty of the terms of the one now in controversy it is necessary for the plaintiff to allege and prove the insolvency of the principal in order to recover of the guarantor is a question which it is not necessary to decide in this case. But on the negative of this question see: Fouche v. Cherokee National Bank, 18 Ga. App. 569 (3) (90 S. E. 102); Adams v. Georgian Co., 19 Ga. App. 654 (91 S. E. 1005); Hagedorn v. Zemurray, 28 Ga. App. 807 (3) (113 S. E. 244); Rawleigh Co. v. Watson, 33 Ga. App. 344 (2, a) (126 S. E. 301); Sims v. Clark, 91 Ga. 302 (2) (18 S. E. 158); Penn Tobacco Co. v. Leman, 109 Ga. 428 (2) (34 S. E. 679); apparently contra: Manry v. Waxelbaum, 108 Ga. 14 (33 S. E. 701); Musgrove v.
Counsel for the plaintiff further contends that the defendant’s plea in abatement, based upon the pendency of another suit, shows ’ that the cause of action could not be barred. It is insisted that the suit referred to in the plea could be none other than the original case in which the plaintiff brought the joint suit against the principal and the guarantor, as reviewed in Etheridge v. Rawleigh Co., 29 Ga. App. 698 (supra), and that if it be true that the original case is still pending, the statute of limitations has been suspended thereby. We can not concur in this contention. “In passing upon the merits of a petition on the hearing of a demurrer, it is erroneous for the court to take into consideration facts that are not shown by the petition.” Pollard v. Blalock, 147 Ga. 406 (2) (94 S. E. 226); Hoffman v. Franklin Car Co., 32 Ga. App. 229 (2), 237 (122 S. E. 896). But even assuming that this rule should not be applied under the facts of this case, we could not, without additional or more specific facts, identify the suit referred to in the plea as any particular suit between the parties. For aught that appears the reference is to some other suit on the same cause of action which the plaintiff may have brought after this court in Etheridge v. Rawleigh Co., supra, reversed the judgment of the lower court overruling the defendant’s demurrer to the petition. There is nothing to show when the other suit thus
The contract sued on was not under seal, and the cause of action based thereon was barred after the lapse of six years from the date when it accrued, or when the plaintiff might legally have brought suit thereon. In any view, that date was more than six years prior to the filing of the present suit on September 27, 1924. The court properly sustained the ground of the demurrer invoking the statute of limitations.
The exceptions in the cross-bill brought by the defendant are to the judgment overruling certain other grounds of the defendant’s demurrer. Since our judgment on the main bill finally disposes of the case, it is unnecessary to pass upon the assignments in the cross-bill.
Judgment on the main hill of exceptions affirmed; cross-hill dismissed.