Thomas v. Richards

124 Ga. 942 | Ga. | 1906

Cobb, P. J.

(After stating the foregoing facts.) In his contract with the plaintiffs Richards ássumed the payment of certain notes, and undertook to pay them at maturity. When any single note matured and Richards failed to pay it, this was a breach of his contract, and an action thereon would lie against him. It was not necessary for the other parties to the contract to delay suit until all of the notes had matured, because the contract was sever-able. “If a contract be entire, but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by installments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.” ' Civil Code, §3793. Nor was it a condition precedent to the bringing of the action that the maker had paid the matured notes which the defendant had assumed. The contract of Richards was not one of indemnity; it was not to hold the maker harmless, but to pay the notes when due. The plaintiffs were damaged when their liability arose at the maturity of the notes by reason of Richards’ breach of his contract to pay the notes. In Tucker v. Murphey, 114 Ga. 663, it was said: “The contract entered into between the plaintiff and the defendant at the time the firm 'dissolved was one by which the defendant obligated himself to pay the debts of the firm, and in such a ease there is a breach of the contract whenever the partner agreeing to pay the debts fails to do so, and the outgoing partner can maintain a suit without having paid anything himself. . . According to the allegations of the petition, the defendant assumed all of the obligations of the firm and agreed to pay its debts. Such being the case, the moment he failed to pay any of the debts when they became due and payable the plaintiff had a right of action against him on the contract, and could bring suit to recover, as damages for the breach of the .contract, whatever sum was necessary to protect, him from liability on account of the debts which the defendant had failed to pay.” We think, however, that the plaintiffs would be entitled to recover only upon the notes which had matured when the suit was brought. It will be noticed in the decision just quoted that it is said the plaintiff could “bring suit to recover, as damages for the breach of the contract, whatever sum was necessary to protect him from liability on account of the debts which the defendant had failed to pay.” There can be no failure of payment on the part of the defendant until the note, payment of which was assumed, has matured. The plaintiff has been damaged only in the sum in which he is liable by reason of the defendant’s failure to pay the matured notes. See Keen v. McAfee, 116 Ga. 730.

The petition, as amended, set forth a cause of action, and the judgment sustaining the demurrer was erroneous. •

Judgment reversed.

All the Justices concur.