32 Ga. App. 356 | Ga. Ct. App. | 1924
W. A. Coleman, administrator of the estate of Eli Coleman, sued W. S. Sikes, as maker, and Dr. L. V. Strickland, as surety, upon a promissory note payable to W. A. Coleman, administrator of the estate of Eli Coleman. The maker filed no defense. The surety answered, admitting the execution of the note, but denied liability, and pleaded that he had been
In our opinion the above facts, which were uncontradicted, demanded a finding that the defendant’s risk, incurred by the contract of suretyship, was increased, and, under the provisions of section 3544 of the Civil Code (1910), “any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk, or exposes him to greater liability, will discharge him.” The conduct of Coleman, the payee, in notifying Strickland, the surety, that he and Sikes, the principal, had “traded on a mule and settled this note that you are endorser on,” was sufficient to work a discharge of Strickland under the statute. In Whitaker v. Kirby, 54 Ga. 278, 280, Judge McCay said: “This court, in Toomer v. Dickerson, 37 Georgia, 428, held that the failure of the mortgagee to put upon record a mortgage given to secure
It follows from what has been said that the verdict in favor of the plaintiff was contrary to law and the evidence, and therefore that the court erred in overruling the defendant’s motion for a new trial.
Judgment reversed.