33 Ga. App. 585 | Ga. Ct. App. | 1925
Lead Opinion
(After stating the foregoing facts.) The majority of the court think that the trial judge erred in overruling the plaintiff’s demurrer to the amended answer of the sureties. While the said answer alleges that “$1,794.02,” past indebtedness of Goen, was inserted in the contract after the sureties signed, it does not allege that the principal, Goen, was not due the plaintiff this amount at the time they signed the contract; and there is direct and positive evidence that-he did owe the plaintiff this amount at that time. Neither does the answer deny that the contract contained the provision that the principal for whom the defendants were sureties was, “at the termination of this agreement, to pay the whole amount then remaining unpaid,” whatever it might be. Neither does the answer deny that the surety clause, signed by the defendants, specified, as a part of the consideration for their signing, “the extension of the time of payment of the indebtedness due from him [Goen] to said company as therein provided.” Since the entire contract contemplated that there was some past indebtedness, and that the sureties were liable for whatever amount might be due by the principal, and they “unconditionally promise and guarantee the full and complete payment” thereof, and since the correctness of the amount alleged to have been inserted in the contract is not disputed, the insertion of the correct amount, if made, was not a material alteration of the contract, according to its reasonable intendment at the time it was signed. Furthermore, under the particular wording of this contract, it might reasonably be held that when the sureties signed it and turned it over to the principal Goen, they impliedly authorized the insertion of the correct amount of
Since the court erred in overruling the demurrer to the answer as amended, all the further proceedings were nugatory.
Judgment reversed.
Dissenting Opinion
dissenting. Boiled down, the controlling questions in this case are: (1) Was the alleged insertion of the words “seventeen hundred ninety-four and 02/100” in the contract a material alteration? And (2) if so, did not the sureties consent to it when they signed the contract and permitted it to be returned to the company ?
“If a written contract be altered intentionally, and in a material part thereof, by a person claiming a benefit under it, with intent to defraud the other party, such alteration voids the whole contract, at the.option of the other party. If the alteration be unintentional, or by-mistake, or in an immaterial matter, or not with intent to defraud, if the contract as originally executed can be discovered and is still capable of execution, it will be enforced by the court.” Civil Code (1910), .§ 4296. “The materially of an alteration is a question of law; the fact of an alteration is a question
For these reasons I think the amended answer of the sureties set up a legal defense, and the court properly overruled the demurrer to it.