54 Ga. 277 | Ga. | 1875
The evidence that the plaintiff, after the note sued on had matured, notified the defendant Kirby that it was settled by the principal, Blalock, is almost conclusive. Indeed, the verdict of the jury could have been sustained, had they, under this evidence, found for the defendant on the plea of payment. But we think this case comes within section 2154 of our Code. That section is in these words: “ Any act of the creditor, before or after judgment against the principal, which injures the security or increases his risk, or exposes him to greater liability, will discharge him.” It was contended in argument before us that as there is no affirmative proof that the principal, Blalock,'is now, or has been at any time since the maturity of the note, or since this notice that it was paid off was given, any less solvent than he was then, it follows that there is no evidence that the security has been injured, and that, therefore, he is not discharged. To this it might be replied that there is someevidence of this. The elder Kirby does testify that after the making of the note Blalock did become less reliable, so that he would have less readily gone his security. It also appears that Blalock has left the state. To this it is replied that this was after suit was brought, and therefore, after notice that plaintiff was denying the payment. But there is no proof that Kirby ever knew the truth of the ease until this trial. He supposed the note was paid off, and at the first trial it seems he so satisfied the jury. And even now the contrary of this is only made out by the plaintiff’s own evidence. Is there any proof that he informed Kirby before Blalock left, how the many facts appearing to establish the payment were to be explained, to-wit: that the trade paying the note was in fact made and acted on, and only failed to be perfect because Whitaker submitted to Blalock’s illegal repudiation of his contract? But we are clear that this
Judgment affirmed.