Taylor v. Scott

62 Ga. 39 | Ga. | 1878

Bleckley, Justice.

1. Where the evidence is in salient-conflict, as in this case, we must look to the verdict to see which side gave the true version of the transaction. Taking the facts as the evidence for the defendants presents them, the sureties both signed on the faith of the creditor’s promise, made to one of them and by him communicated to the other, that he, the creditor, *42would apply the principal debtor’s crop of the current year to these particular notes. As between the sureties and the creditor this promise was a part of the consideration of the contract of suretyship. 30 Ga., 93, 306. Moreover, each of the notes, by its terms, was a crop lien upon the whole of said crop; and these notes were the first, and therefore the highest, incumbrance which the record discloses to which the crop was subject. The very face of the papers which the sureties signed appropriated the crop to these obligations, and it was not in the creditor’s power to change that appropriation without the consent of the sureties. 52 Ga., 380. See also 51 Ga., 205. The crop was of sufficient value to pay all the notes, and the principal debtor delivered it to a partnership of which the creditor was a member. The partnership appropriated it to prior liens of like kind in their favor, except a small surplus which, through them, reached this creditor and was applied on these notes. In our opinion the sureties were discharged.

2. It seems to us that the creditor cannot put off the sureties with the excuse, that the prior liens were not taken by him, but by the partnership for advances which the partnership furnished to produce the crop, and that delivery of the crop was not made to him but to the partnership. He had stipulated with the sureties that the crop should go to their protection; and as a partner he should not have entered into an ari’angement with the debtor which conflicted with his prior obligation, as an individual, to the sureties.

Judgment affirmed.

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