41 Ga. App. 617 | Ga. Ct. App. | 1930
1. Where sureties sued by a creditor gave the statutory notice to the creditor to proceed to collect the debt out of the principal, and on the trial it was admitted by the creditor that it had never filed any suit against the principal, and that, when the statutory notice was served on it, the principal resided in Eulton county, Georgia, and that he had not been served in the pending suit, it was not error for the court to admit in evidence the notice by the defendant sureties to the creditor to proceed to collect the debt out of the principal, over the objections that under a certain provision of the contract sued on and signed by the sureties they had waived their right to set up as a defense the failure of the creditor to comply with the notice to sue the principal, and that the notice tendered in evidence tended to vary and contradict the terms of the written contract sued on. The provision in question stipulated that “We, the undersigned sureties do hereby waive notice of the acceptance of this agreement and diligence in bringing action against said second parly [the principal].” (Italics ours.) Waiving diligence or promptness in bringing a suit against the principal does not mean acquiescence in the failure lo bring any suit at all. The authorities cited by counsel for the plaintiff in error are distinguished by their facts from this ease.
2. Under the facts of the case as disclosed by the agreed statement of facts (which are quite different from the facts as shown by the record when
Judgment affirmed.