1 Ga. App. 623 | Ga. Ct. App. | 1907
Suit was brought by Bass and Heard, in a justice’s court, on promissory notes made by N. J. Edmondson, S. J. Edmondson, Reuben Underwood, and W. C. McWhorter. Reuben Underwood and W. C. McWhorter were served, and appeared and filed the following plea: (1) That said defendants were only sureties, and that said notes were without consideration as to them. (2) That the indebtedness for which said notes were given was incurred by N. J. & S. J. Edmondson; that’ the fact that these defendants were only sureties was well known to the plaintiffs at the time these notes were executed; that they were induced to sign said notes as sureties because the said Bass and Heard, to whom said notes were payable, expressly and unconditionally contracted and agreed with defendants that, if they would sign said notes as sureties, the firm of Bass and Heard would not only extend the
The plaintiffs demurred to this plea, on the grounds, that it set up no legal defense to the notes sued on, and that it sought to vary the terms of the notes by parol agreement. The justice overruled the demurrer, and, after hearing the, evidence, entered judgment-in favor of the defendants. An appeal was had to a jury, which returned a verdict for the defendants; and thereupon the plaintiffs filed a petition for certiorari to the superior court, which was sanctioned and the writ granted. Upon hearing the certiorari the superior court sustained the same, and ordered the-case to be sent back to the court below, with instructions “that the demurrer to the plea -be sustained and the plea stricken, and that no testimony as to any contract set up in said plea between the plaintiffs and defendants prior to the signing of the notes sued on be admitted.” To this judgment the defendant in certiorari excepted.
We think the judgment of the superior court in ordering the justice to strike the plea on demurrer was erroneous. The fact of suretyship did not appear on the face of the contract, and could have been proved by parol. Civil Code, §2984. We do not think the plea filed by defendants as sureties was subject to the objection that it sought to vary the terms of the written contract by parol agreement. The consideration of a note can always be inquired into, and
The plea in this case alleging that the defendants signed the' notes as sureties, that the fact of suretyship was known to the creditors, that they had signed the notes on the faith of the creditors’ promise and agreement, that they would employ one of the principal makers for a sufficiently long time and would pay him a sufficient salary to pay off said notes, and would apply his salary to the payment of such notes; that the creditors had performed a part of their agreement and had employed .one of the principal makers of the notes accordingly, but had failed to apply his salary to the pay