24 Ga. App. 80 | Ga. Ct. App. | 1919
-It is only the fifth headnote which is thought to require elaboration. Sam Tate, W. H. Woodbery, and E. W. Butt brought suit against E. W. Watkins, alleging that the plaintiffs, together with the defendant, were joint makers of certain notes; that the plaintiffs, together with all the other makers except Watkins, had paid off the notes while Watkins had paid nothing, and that by reason of these facts Watkins was liable to the plaintiffs in designated sums by way of reimbursement and contribution. Watkins admitted signing the notes, but denied liability thereon, alleging that he had never received any consideration; and alleged that he sigped the notes at the solicitation of the plaintiffs, and with the understanding then had between him and the plaintiffs that "he was not to be liable” thereon; and that he was a mere accommodation maker or indorser. The present suit proceeded in the names of Woodbery and Butt only, it having been previously disposed of as to the plaintiff Tate. The record shows that four certain banks in north Georgia and one in Tennessee, among them being the North Georgia National Bank of Blue Bidge, Ga., and the Gilmer County Bank of Ellijay, Ga., were, in the fall of 1911, about to fail. The defendant was at the time a director and stockholder of the North Georgia National Bank, president of the Gilmer County Bank, and also a depositor. The plaintiffs and the defendant, together with thirteen other persons, executed two notes, each dated November 1, 1911, one for $75,000
That the plaintiffs, if entitled to recover at all, are entitled to the amounts claimed by them respectively is not questioned, the contention of the defendant being that he was merely an accommodation maker or indorser, that he received none of the consideration, and that he was induced to ’ sign the notes by the representations of the plaintiffs that he would never have them to pay or be 'called upon to pay them. The fact that the banks for whom the money was borrowed (of one of which the defendant was a stockholder and director, and of another of which he was president and a depositor) received the money thus borrowed is undisputed. The defendant’s plea of failure of consideration is therefore not supported by the evidence. Granting, for the sake of the argument only, that the defendant was merely an accommodation maker or indorser, when accommodation parties get for and through another the exact consideration which they contemplate it is the same as if they receive it themselves, and a plea of want of consideration is not good. Farrar v. Bank of New York, 90 Ga. 333 (17 S. E. 87). This leaves only the defense
Were this a suit against the defendant upon the notes themselves by the payees thereof, the defendant having admitted signing the unconditional promissory notes, and the undisputed evidence showing that he received the consideration contemplated at the time he signed them, the plea of the defendant, attempting to set up such a promise on the part of the payees, would constitute no valid defense to the action; for it would amount to nothing more than an effort to vary the terms of the unconditional written promise to pay, by setting up a contemporaneous parol agreement contrary thereto, with no allegation that such an understanding was omitted from the notes by fraud, accident, or mistake. See Boynton v. Twitty, 53 Ga. 214; Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86); Proctor v. Royster Guano Co., 21 Ga. App. 617 (3); (94 S. E. 821); Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217). But in a suit for contribution from his co-obligors by one who has paid the joint obligation, the right of contribution does not rest on the original contract, and the note thus paid is not the basis of the action for contribution. The right of action has no strict connection with the promissory notes, but arises out of the relation created thereby on a common obligation, and the contract implied therefrom of discharging the common obligation equally. The co-obligor’s right of action for contribution arises at the time he parts with his money in discharging, in whole or in part, the joint liability, and the note may afford evidence of the sum of money advanced by the paying co-obligor, and afford a basis for determining the aliquot portion thereof for which the defendant may be liable by reason of his implied promise to pay. Sherling v. Long, 122 Ga. 797 (50 S. E. 935); Hall v. Harris, 6 Ga. App. 822 (65 S. E. 1086); McLin v. Harvey, 8 Ga. App. 360 (69 S. E. 123). There is no contention or issue made upon the proposition that the plea of the defendant, setting up a parol understanding to the effect that the defendant signed the notes by virtue and by reason of the verbal warranties and assurances of the plaintiffs that no injury or loss would accrue thereon, fails to set forth a good defense to the suit for contribution; and without passing upon this proposition, which is not raised, direction-is
As to the plaintiff Butt, there was absolutely no evidence to sustain the plea. As to the plaintiff Woodbery, while the defendant testified that Woodbery said to him, “Now you will never have a cent of it to pay—never even be called on,” and, “But for the statement of Mr. Woodbery that I wouldn’t be called on to pay these notes, I would not have signed them,” and though he further testified, and in the same connection, “What caused me to sign these original two 'notes for twenty-five and seventy-five thousand dollars each was representations made by general talk arid representations made by Mr. Woodbery. . . As to inducements held out by Mr. Woodbery that induced me to sign these notes, Mr. Woodbery was addressing a crowd in the hall of the banking building and I was very slow about signing, in fact I wasn’t signing; he said, ‘Now you will never have a cent of it to pay—never even be called on.’ There were several in the room, I don’t remember just who and when he said that. We had done quite a heap of talking about it heretofore, and it was understood that if we could get enough signers to make one hundred thousand dollars for the purpose of taking care of the situation that we wouldn’t have anything to pay, that it was only a matter of accommodation—that the banks would go on and make the interest—keep the .interest paid as long as those banks wanted to carry it, and then the banks would pay it; that was the general talk among the directors [of whom defendant was one] generally. Then Mr. Woodbery, in order as I thought to convince me, says, ‘You will never have a cent of that to pay—and will not even be called on to pay,’ ” he further testified, “I couldn’t say just who was present when Mr. Woodbery made these representations to me, but I think a good many of the directors were there. That was my idea, but I wont undertake to say just who. I think Mr. Tate was there, and I know several others. The talk and general supposition was that they thought they wouldn’t have to pay these notes, as I suggested, the way Mr. Woodbery made the statement.”
It will thus be seen that, taking the defendant’s own testimony, which is vague and equivocal, and construing it most strongly against him, as we must, it is not shown that the statement of Woodbery was a positive assurance or guaranty, but it appears to
Judgment affirmed.