141 Ga. 48 | Ga. | 1913
(After stating the facts.) It is clear from the testimony that the substance of Randall’s undertaking or promise upon which the plaintiff bases the claim of a right to recover against him individually is embodied in the words, “If you will continue to make us shipments, so that we can operate the plant and fill some orders that we have got and get the thing in a little better shape, you will not lose any money by it. I will guarantee the payment of the account myself.” The words “us” and “we,” as used in this agreement, meant, evidently, the corporation in which Randall was a stockholder and of which he was president, and to which he was desirous of having other shipments of coal made. That being true, on the face of it the agreement or promise of Randall was an undertaking in the nature of a guaranty or suretyship; whether the one or the other need not be discussed here, for it is necessary, in order to render such an obligation or promise binding, that it be in writing. In the present case it rested in parol. The words, “I will guarantee the payment,” imported the undertaking by one .employing the expression to'answer for the debt or default of another as a guarantor, in the absence of qualifying terms which might have the effect of showing that the undertaking was an original, independent one, and not collateral. Here there were no such qualifying terms. If it should be held that, under the language used by the parties, evidence was admissible to show that the word “guarantee” was not used in its legal signification, but that the real intent of the parties was that the promise was an original one, then there was no such evidence. On the contrary it may be inferred from the evidence that the coal was charged to the Lime Company, not to the defendant, for that company was sued in the city court; and when the Lime Company went into bankruptcy the plaintiff proved its claim in the bankrupt court, thus indicating that it considered the Lime Company as its debtor. In the petition the plaintiff clearly alleged an independent and original undertaking on the part of Randall to pay for the coal shipped after February 24, 1908; but there was no proof to sustain this contention, and the court did not err in granting a nonsuit.
Judgment affirmed'.