51 Ga. App. 623 | Ga. Ct. App. | 1935
Irrespective of whether the defendants in this case were sureties or guarantors (see, in this connection, Etheridge v. Rawleigh Co., 39 Ga. App. 698, 116 S. E. 903; Rawleigh Co. v. Salter, 31 Ga. App. 339, 130 S. E. 679), they were released from liability, since what they agreed to do was to guarantee the honest and faithful performance on the part of their principal of a written contract, whereby the principal was “to purchase [of the plain
The recent case of Rich v. Rawleigh Co., 47 Ga. App. 571 (171 S. E. 228), although not referred to in the briefs, should perhaps be distinguished. The contract guaranteed in that case provided that it could not be modified except in writing signed by both the principal and the plaintiff with the latter’s corporate seal affixed. What amounted to a suggested change by the plaintiff in that case was a suggestion only and purely unilateral. In the instant case, the contract contained no such provision as to modification, and the novation was effected by the meeting of the minds of the contracting parties through correspondence, all without the knowledge or consent of the defendants. As was intimated in the Rich case, • the defendants might have been there discharged, even in the absence of a novation, if it had been shown that the losses were incurred by transactions made outside of and beyond the contract, but such facts were not shown.
The court did not err in overruling the demurrer to the defendants’ answer as amended, or in refusing a new trial to the plaintiff.
Judgment affirmed.