37 Ga. App. 559 | Ga. Ct. App. | 1927
1. Where, as in the instant case, all the testimony, including that offered by the plaintiff, conclusively establishes that the contract sued on was not executed by the defendant sureties, no recovery can be
2. While ordinarily an estoppel will not result from mere silence, yet where a person remains silent under circumstances which make it his duty to speak, the principal of equitable estoppel may thereafter be invoked by one who has thus been led to act to his injury so as to prevent the one remaining silent from asserting the truth which he, by his silence, has denied. Accordingly, where, as here, persons sued as sureties on the obligation of another receive notice from the obligee of the receipt and acceptance of the contract of suretyship», and the circumstances are such as the jury might have found would charge such sureties with notice that the obligee in the contract was about to make advances of goods on the faith of their signatures as sureties, the latter can not, after .remaining silent while such advances were knowingly permitted to be made, thereafter assert that they did not execute the contract. See, in this connection, Colquitt v. Smith, 76 Ga. 709; Strauss v. Denton, 140 Miss. 745; Civil Code (1910), §§ 4419, 5736.
3. It was competent for the defendants to explain their failure to deny having- signed the contract, and also to explain why certain letters recognizing his liability were later written by one of them to the plaintiff company, by offering testimony going to show that they had at one time executed with the principal obligor in the contract sued on another contract, similar to the one sued on, which contract had been returned unaccepted, and that they believed the plaintiff, in its notice, had reference to such previous agreement. Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (21) (12 S. E. 18). Accordingly, in the event the jury found that the defendants, when notified of their acceptance as sureties, were cognizant that the plaintiff contemplated making advances to the principal debtor on the faith thereof, the proof of the execution of such former contract could properly be considered by the jury in determining whether the circumstances surrounding the admitted silence of the defendant sureties was such as would prevent them from being estopped thereby. .
4. Where, as in the instant case, the proof of any such former similar contract was contradicted by the testimony of the plaintiff’s officers and agents to the effect that the contract sued on embodied the only agreement which had ever been entered upon between the plaintiff company and the principal obligor thereon, as well as the defendant sureties, and -where the defendants’ evidence with reference to its execution and return, and whether it had been returned at the time the letters to and from the plaintiff were written, is altogether vague and indefinite, the issues of fact made by the testimony upon that subject should have been submitted to the jury for determination, and it was error to direct a verdict in favor of the defendant sureties upon the theory that rrnder all the proved facts and circumstances the jury could not have found that they were estopped to deny the execution of the agreement sued on.
Judgment reversed.
