9 Ga. App. 714 | Ga. Ct. App. | 1911
The Peoples Bank of Summit brought suit on a promissory note, against E. A. Williams Jr. and John E. Sharpe as joint principal makers. ■ Williams admitted the execution of the note and liability thereon as principal maker. He alleged further, in his plea, that Sharpe signed the note only as surety. Sharpe filed a defense and set up that he signed the note simply as a surety, that ten per cent, usury had been charged on the note by the bank without his knowledge, that the note contained a waiver of homestead, and that as surety .he was discharged on account of the usurious interest so charged, his risk- as surety being increased. The jury rendered a verdi,ct against both defendants as joint principal makers, and Sharpe brings error. His motion for a new trial contains numerous assignments of error, but the view that we entertain on the merits makes a decision on these special assignments of error unnecessary.
The contentions of the defendant Sharpe in the court below were, that he was a surety, that usury had been charged by the bank without his knowledge, and that, as a legal result, in connection with the waiver of homestead by the maker of the note, Williams, his risk had been increased, and he was legally discharged thereon as surety. Two facts are not controverted: (1) that the note contained a waiver of the homestead exemption, and (2) that ten per cent, usury was charged-by the bank when the note was originally made and the money advanced by the bank to Williams.’ There was no evidence that Sharpe knew that the usury had been.charged by the bank, there being nothing on the face of the note to disclose the fact, and Sharpe positively testified that he had no knowledge that usury had been charged by the bank. The only real contention in the case was as to the relation in which Sharpe stood to the note. It was contended by the bank that he was a joint maker. It was insisted by him that he was a surety only. In
After all, the legal relationship of each party to the -note or contract must bo determined by the facts. This relation is-not determined accurately or conclusively by the mere opinion of the parties to the contract. The fact that the bank thought and had reason to think that Sharpe signed as principal maker of the note did not make him such principal. Although Sharpe himself may have thought that he signed the note as a principal, this did not in law determine his true relationship to the contract. It may be stated that Sharpe testified positively that he signed the note as surety, and Williams, who admitted that he was the principal maker, testified that Sharpe signed as surety, and not as joint maker with him. The cashier of the bank, per contra, testified that when the note was signed by Sharpe he did not know and had no reason to believe that the plaintiff signed other than as principal maker with Williams, and moreover that Williams had told him that Sharpe had an interest in his business and in the consideration for which the note was given. However, there are admitted facts which in our opinion not only show that Sharpe was surety only, but which brought home to the bank knowledge that Sharpe was a surety, irrespective of how he signed. First, the note sued upon was not an original note. It was a renewal note. The original note was given to the bank by