5 S.E.2d 744 | Ga. | 1939
1. While a married woman may not contract a debt of suretyship that will bind her, she may, as an original undertaker, become liable for goods to be furnished to another person, from which undertaking she derives no personal benefit.
2. One who contracts with a married woman that on the faith of her note and security deed he will act as surety on the bond of another person enters into an arrangement to make the married woman ultimately liable to pay the debt of the other person; and such transaction will fall within the law's condemnation of contracts of suretyship by a married woman.
3. A security deed given by a married woman to secure two notes, one a valid claim against her and the other void because given as surety, is not void in its entirety, where it appears that the contract is severable, and not entire.
The only questions presented are those raised by the general grounds of the motion for a new trial. The evidence was substantially as follows: The plaintiff and her husband went to Dalton in September, 1937, to see their son, Manuel Stafford, who was in jail on a charge of larceny after trust. At the request of their son they went to the defendant to get him to sign a bond for his release from jail. The defendant signed the son's bond, which was for $300, and as security therefor took a note signed by plaintiff and her husband for $300. A lawyer for the son was hired, the defendant advanced his fee of $40, and the plaintiff and her husband gave the defendant their note for the amount of the lawyer's fee. The plaintiff had some property, but her husband had nothing. Both, however, signed a deed to the plaintiff's property for the purpose of securing the two notes to the defendant. The facts just stated appeared without dispute. There was evidence that the plaintiff was the one who induced the defendant to sign the bond. She testified that no debt of her husband was involved; that she told the defendant she owned this property and was willing to do whatever was necessary to get a bond for her son. "I was doing this myself, because Rufus, my husband, did not have anything and could not do anything about it himself. I was willing to do anything in the world to get this boy out of jail, and told Mr. Birch [defendant] and Mr. Dalton so." She employed the attorney for her son and arranged with Mr. Birch to pay the lawyer. *407
1. The evidence authorized, if it did not demand, a finding that the husband signed the notes and the deed as surety for the wife, and against the plaintiff's contention that the notes and the deed were signed by her to secure debts of her husband. "While a married woman may not contract a debt of suretyship that will bind her, she may, as an original undertaker, become liable for goods furnished to another from which she derives no personal benefit." Freeman v. Coleman,
2. The note for $300 presents a different question. The plaintiff, a married woman, wanted to obtain the release of her son from jail. A surety on the son's bond was required, but under Code, § 53-503, she could not act as such surety. In this situation she induced the defendant to sign the son's bond as surety, by giving the defendant a note and security deed to secure him in case he should suffer liability by reason of such bond. Could the plaintiff, by indirection, bind her property to secure the release of her son? It is contended by the defendant that this question was not presented by the pleadings, but we can not agree to this contention. While the petition was devoted mainly to an attack upon the notes and security deed on the ground that they were given to secure debts of her husband, it also stated the circumstances under which these instruments were given, and alleged that they were given "as security for said defendant on said bond." In view of these allegations and the prayer for general relief, we can not say that the pleadings were insufficient to raise the question. There is nothing in the record to show that this question, which is argued in the brief of plaintiff in error, was not considered by the trial court. We think this case is controlled on principle by previous decisions of this court. In Gross v. Whitely,
3. The remaining question to be determined is whether the security deed was rendered entirely void by the inclusion of the invalid note. The answer depends upon whether it was an entire or severable transaction. "A contract may be either entire or severable. In the former, the whole contract stands or falls together. In the latter, the failure of a distinct part does not void the remainder. The character of the contract in such case is determined by the intention of the parties." Code, § 20-112. The consideration for the deed was certainly severable. It was given to secure two notes, one absolute and the other conditional. The $300 note recited that it was to be of no effect if the plaintiff's son complied with the terms of his bond and appeared in court to answer the charges against him. It appears from the recitals of the deed that the parties intended that the deed should secure the $40 note in any event, but should secure a note for $300 only under certain conditions. These facts were sufficient to show that the contract was severable. See BeardenMercantile Co. v. Madison Oil Co.,
Judgment reversed. All the Justices concur. *410