31 Ga. App. 329 | Ga. Ct. App. | 1923
The contract sued on in this case is very similar in its essential features to that which formed the basis of the action in Etheridge v. Rawleigh Co., 29 Ga. App. 698 (116 S. E. 903). In that case the liability of the contending party was held to be that of guaranty, and not of suretyship. The same appears to be true in this case. The distinctions between these two forms of liability was gone into at considerable length in the opinion in that case. All that was there said is directly applicable here, and it does not seem profitable to repeat the reasoning there enunciated. The argument there used was summarized in the concluding paragraph, as follows: “The contract sued on, as we construe it, is one of guaranty, whereby the solvency of the principal as pertaining to the matters specified by his agreement was vouched for. In addition to the language of the contract repeatedly designating it as one of guaranty, besides its provisions with reference to the acceptance and notice of acceptance, which could have no possible meaning or relevancy to any contract of suretyship, and besides the fact that not only does the sponsor apparently fail to join with the principal in the same obligations, but the scope, effect, and extent of his liability under his promise are actually not the same,—in addition to all of these matters which have been specially pointed out, —it appears to our minds that the very nature and purpose of the instrument are more consonant with the idea that the sponsor seeks' to vouch for the ability and solvency of his principal than that he has sought to join with the principal in an indefinite obligation of this particular kind and character.” In that case we sought to show, that, while there might be various earmarks of distinction between contracts of guaranty and suretyship, including the one specially mentioned by the code (Civil Code of 1910, § 3538), the one vital and fundamental line of demarkation lies in the fact that, while a surety renders himself primarily responsible with the principal debtor and on the same undertaking, a guarantor becomes collaterally responsible by virtue of his own separate and independent obligation, whereby, without joining in the principal’s undertaking, he yet vouches for his solvency by guaranteeing that he will be able to perform as he has agreed. In Baggs v. Funderburke, 11 Ga. App. 173, 174 (74 S. E. 937), this court, speaking through Judge Pottle, said: “The test laid down in the code, to distinguish a contract of suretyship from one of
In the instant case, able counsel for the plaintiif in error conclude their well-considered brief as follows: “We most respectfully submit that the Etheridge case should be reviewed and overruled, as in conflict with code-section 3538, Paris v. F. & M. Bank, 143 Ga. 324, Baggs v. Funderburke, 11 Ga. App. 173, Maril v. Boswell, 12 Ga. App. 41, Fields v. Willis, 123 Ga. 272, Manry v. Waxelbaum, 108 Ga. 14, 17.” Taking up first the Manry case: the ruling of the Supreme Court was not that the contract there involved was one of suretyship, but that it was one of continuing guaranty. The 3d headnote is as follows: “The defendant made the following contract with the plaintifls: ‘For and in consideration of the sum of one dollar in hand paid, and the receipt of which is hereby acknowledged, I, J. H. Manry, do hereby guarantee the prompt payment of all accounts .and notes given in settlement for goods purchased by G. W. Grubbs of Bethel, Georgia, from the Waxelbaum Company of Macon, Georgia, to the extent of four hundred dollars. Be it further understood that I, J. H. Manry, shall be at liberty to withdraw this guarantee at any time, provided that the account of G. W. Grubbs is paid.’ Held, that this was a continuing guaranty.” In the opinion of the court (speaking through Justice Cobb) it is said that it can be fairly inferred that tlie signer of this separate instrument “only intended to bind himself in case Grubbs (the principal) was not able to pay.” The excerpt quoted from the Etheridge case concludes with similar language. In Paris v. Farmers & Merchants Bank, 143 Ga. 324 (85 S. E. 126), and in Baggs v. Funderburke, supra, and Maril v. Boswell, 12 Ga. App. 41 (76 S. E. 773), cited in the Paris case, the contract sued on
The remaining case especially relied upon by plaintiff in error is that of Fields v. Willis, 123 Ga. 272 (51 S. E. 280). That case was indirectly referred to in the Ftheridge case as being one of the cases cited in McClain v. Georgian Co., 17 Ga. App. 658 (29 Ga. App. 705). To the writer this has been the one most difficult to reconcile with what he regards as the rule laid down by the deci
But irrespective of the correctness of our interpretation of the Fields case and other cases relied on by plaintiff in error, it seems manifest to us that here, as in the Etheridge case, they cannot possibly operate to change the result of the conclusion we have arrived at. In the instant case the contract signed by the principal-was
Counsel for plaintiff in error, while asking that the Etheridge case be reviewed and overruled, seek also to differentiate that case from the instant one by calling attention to the additional stipulations in the present case, providing: (1) that in any suit brought against the makers the plaintiff need prove only the' amount due by the principal debtor; (2) that suit may be instituted’against the sureties without first suing the principal; and (3) a monetary consideration flowing to the defendants in error is here recited, which plaintiff in its petition alleges was not in fact paid. None of these additional stipulations could have any sort of relevancy in a contract of suretyship; .the only purpose and intent of the first two would seem to be to effect .a waiver of rights which the de
Judgment affirmed.