55 Ga. 656 | Ga. | 1876
This was an action brought by the plaintiff against the defendants on a promissory note, of which the following is a copy:
“Sumter County, February 9th, i860.
“ Ten months after date we, or either of us, promise to pay to our own order, in the city of . . . $5,000 00, for value received, and with interest from date, if not punctually paid. (Signed) “ James Stewart,
“ A. S. Cutts.”
The following indorsement was on the back of the note:
“ Pay W. B. Parker, or order. “ James Stewart,
“ A. S. Cutts.”
The defendant, Stewart, filed a plea to the action, in which he alleged that he was a security on the note for Cutts, which fact was known to the plaintiffj and that when said note became due the plaintiff, in consideration that Cutts would execute to him a deed to certain lands owned by him, agreed that he would extend the time of payment of said note for twelve months from that time for the consideration aforesaid, and that said Cutts did execute and deliver said deed, all of which was without the knowledge or consent of said defendant, Stewart, whereby he claimed to be released and discharged from the payment of the note sued on. It was proven on the trial that Cutts, on the 18th of July, 1866, executed and delivered to Parker a deed to thirty-six hundred acres of land in Florida as collateral security for the debt, in consideration of which Parker agreed to give him further time on said note to the April term of the court, 1868. The correspondence between Parker and Cutts was read in evidence, and also the testimony of Parker, in which he denied that Stewart was security for Cutts on the note. Cutts stated in his evidence that Stewart
If Parker knew (hat Stewart was security on the note at the time the contract for indulgence for a consideration was made with Cutts, then the security would have been entitled to be discharged, under the law, but if Parker did not know, at the time of the contract with Cutts for indulgence, that Stewart was a security on the note, then Stewart would not have been entitled to be discharged from its payment. In the first part of its charge, the court gave the law applicable to the facts of the case to the jury, substantially correctly, and if
Let the judgment of the court below be reversed.