35 Ga. App. 454 | Ga. Ct. App. | 1926
(After stating the foregoing facts.) The suit being on an executory contract, the question to be determined is whether the petition shows that the plaintiff has himself complied with the obligations imposed upon him by the agreement. The contention which appears to be mainly urged by plaintiff is “that what was done as set forth in the petition and the amendment was a full compliance with the contract and the equivalent of paying $15,000 in cash, because if the bank was made solvent as set forth in the contract, there would be no difference in plaintiff paying into the bank $15,000 in cash and turning over to the bank $15,000 worth of its own obligations which were accepted as cash and cancelled by the bank; because if $15,000 had been turned over to the bank in cash, the same money could and should have been used by the bank in paying and retiring its own obligation. Besides, even if there should have been a slight departure from the
The suit being on contract, we do not think that any change in the terms thereof, even though arrived at bjr the plaintiff and the officials having active management of the bank, would be binding upon the defendant unless such a novation of the agreement was agreed to by him. The question therefore is whether, as alleged by the petition, the plaintiff did actually comply with the obligations assumed by him under- the signed agreement. We agree with the contention of the plaintiff that the use of the pre-existing time certificates of deposit could be taken as a compliance with the provisions of the agreement that the plaintiff, “in order to secure that guarantee, will place with said Bank of Lawrenceville time deposit certificates amounting to fifteen thousand dollars.” The contract itself sets forth that the making good of the described assets in the amount of $15,000 would make the bank solvent and permit it to be reopened; and if it had been intended to compel Thomoson to pay in $15,000 of new money to secure his guaranty of the bad notes, and thus incidentally furnish additional ready cash for the bank to operate on, it would have been an easy matter to so provide. The expressed purpose of the contract does not, however, purport to require Thomoson to provide ready cash for the use and benefit of the bank; but the whole scheme for its rehabilitation, as expressed by the signed agreement, was that in order to avoid the necessity of the stockholders paying in $15,000
The plaintiff unquestionably used for the common'good of the bank, its depositors and stockholders, his personal assets held by the bank, and it is with some reluctance that we feel compelled to hold that he can recover nothing in the suit maintained on the contract. The executory agreement plainly provides that the impaired capital is to be restored by the plaintiff increasing the assets of the bank by making good $15,000 worth of bad assets. He was to do this by guaranteeing their payment and securing his guaranty in the manner set forth by the contract. Whatever rights, if any, the plaintiff might have against the fellow stockholders in restoring the impaired capital in the manner resorted to, he can not recover on the executory contract sued on, unless he himself shows a compliance on his own part with the obligations therein assumed by him. He agreed to guarantee the bad paper belonging to the bank and to secure his guaranty. The defendants agreed to make good their pro rata share of any losses he might suffer as guarantor by virtue of such guaranty. In point of fact, the petition shows that he did not become guarantor upon this paper at all; but, on the contrary, it shows that he used his time-deposit certificates to buy the paper outright, and sought to collect it as his own property, using the bank merely as a collecting agent, without the bank being concerned as to the success or failure of its
Judgment affirmed.