11 Ga. App. 514 | Ga. Ct. App. | 1912
1. This case has heretofore been before this court (7 Ga. App. 760). In ruling upon the demurrers at that time we held that the measure of the guarantor’s liability was fixed by his contract, and that it was no concern of his if the creditor extended credit for a larger amount than that which he guaranteed would be paid. His liability would not be increased beyond the precise
To the plaintiffs petition was attached a copy of the contract in which the defendant undertook to guarantee payment to the amount of $1,500 on any goods sold or to be sold by the plaintiff to Fain & Weaver. On its face it stated that it was a continuing contract; and certainly, under its terms, it would be a continuing contract at least until the plaintiff was notified by the guarantor that no further credit was to be extended to Fain & Weaver. Therefore the defendant’s denial of the second paragraph of the petition was entirely nugatory, unless the answer specifically denied the execution of the contract and amounted to a plea of non est factum. As the defendant did not deny the execution of the contract, or that the articles of merchandise set forth in the bill of particulars were furnished to Fain & Weaver, he, in legal effect, admitted his execution of the contract and the plaintiff’s compliance therewith. Likewise, for the reason that there is no denial of the execution of the contract, those paragraphs in which it is insisted that the contract was not a continuous one fail to set up any issuable defense; and as there was an admission in the answer that an even larger amount of goods than that guaranteed by the defendant had been supplied by the plaintiff to Fain & Weaver, the court properly disregarded the qualified denial to the effect that the goods had not been delivered in accordance with the contract. The ruling of the trial judge upon that portion of the answer which attempted to set up that the liability of the guarantor was affected by reason of the fact that the creditor had sold Fain & Weaver upwards of $3,000 worth of merchandise, when he had only contracted to guarantee the payment of $1,500, was in accord with the ruling of this court in our prior adjudication upon the demurrers.
2. The trial judge did not err in striking that portion of the defendant’s answer in which it was insisted that the guarantor was
3. The court'did not err in striking the paragraphs of the defendant’s answer concerning which complaint is made. Taken as a whole, the formal denial of liability was rendered wholly ineffectual by the admission of such material facts as necessarily established a legal liability. Bedingfield v. Bates Advertising Co., 2 Ga. App. 107 (58 S. E. 320). Hpon the issue raised by the answer of the defendant as to attorney’s fees, the evidence was not contradicted that the requisite legal notice was properly and timely given; and for this reason there was no error in directing the verdict.
Judgment affirmed.