41 Ga. App. 809 | Ga. Ct. App. | 1930
(After stating the foregoing facts.) As will be seen from the above statement, J. C. Ward was principal on a bond to certain carriers, including a named railroad company, and the plaintiff deposit company was surety. There arose a liability under the bond amounting to $1,500, which the deposit company was about to pay, and the defendants J. C. Ward and E. L. Marchman executed the note sued on for the purpose of covering their resulting indebtedness to that company. The defendants alleged that “in settlement of said bond the bond was to be canceled and returned to defendant J. C. Ward;” and “that plaintiff has never canceled said bond and returned the canceled bond, . . and has not carried out the conditions which were a part of the contract, has never accepted said note in settlement of the bond, and has failed to give defendants or either of them any consideration whatever for the execution of said note.” As appears from the brief of counsel for the defendants (the plaintiffs in error), it is not contended that the plaintiff company did not pay the $1,500, as indicated in the instrument attached to the answer as Exhibit A, but the sole complaint is that the plaintiff did not accept the note in settlement of the bond and had not canceled and returned the bond in accordance with the conditions upon which the note was executed. There is no merit in this contention. It appears from Exhibit A that the note was tendered, and intended to be accepted, “in full, final, and complete settlement” of the liability of the defendants, or either of them, under or by reason of the bond, “the said bonding company [the plaintiff] agreeing to settle with said railroad its liability under the bond.”
The statement in the letter (see Exhibit B) from the defendants’ attorney to the attorney for the plaintiff, "I will thank you to have the bond canceled and send to me for delivery to Mr. Ward,” does not affect the case. The terms upon which the note was to be accepted were stated by the defendants, over their signatures, in the document copied above as Exhibit A, and there was nothing to indicate that their attorney had any authority to add to or take from the conditions therein expressed. Moreover, the language quoted did not purport to do so, but was merely in the nature of a request. The allegation that the plaintiff delayed accepting the note until certain claims of the defendants against the railroad company were barred by the statute of limitations, to the injury and damage of the defendants "in a considerable sum,” is insufficient as the statement of a defense. In the first place, there could be no recoupment, because the amount of the alleged damage is not shown. Moreover, so far as appears, the defendants were not hindered in their right to proceed against the railroad company upon such claims, pending acceptance of the note by the plaintiff.
We conclude that the answer failed to set forth' any valid defense and that the case was properly disposed of in the trial court.
Judgment affirmed.