34 Ga. App. 68 | Ga. Ct. App. | 1925
The principle of law laid down in the second division of the syllabus does not appear to have been heretofore dealt with' either by the Supreme Court of this State or by this court, but the rule adopted appears to be supported by the great weight of general authority. The rule is stated in 32 Cye. 55, as follows: “Forbearance by the creditor or obligee is sufficient consideration for the contract of a surety, although a definite time is not agreed upon; and if, in reliance upon the agreement of the surety, the creditor forbears to bring suit against the principal, or grants him an extension of time within which to pay the debt, or note, the surety is bound.” In 6 Ruling Case Law, 661, it is said: “While it seems to have been thought at one time that the promise to forbear which would serve as a consideration for a guaranty by a third person must be for a definite time, or for a reasonable time, the conclusion reached in the later decisions is that, where there is an agreement to forbear, it will be presumed to be for a reasonable time, in the absence of any stipulation as to a specified time. Such is the legal construction of such a promise. The debtor, therefore, by such a promise, does obtain a right, not only to some delay, but to a reasonable delay, such as, under all the circumstances he is reasonably entitled to. Therefore a promise to forbear, although for an indefinite time, if followed by actual
The difficulty we have encountered in determining the proper rule arises out of certain holdings of our courts in dealing with the question of the discharge of á surety, where, without his consent, the payee of the note has granted indefinite indulgence. In these cases, both the Supreme Court and this court have held that the surety is not discharged, even though such an indefinite promise of indulgence be founded upon a consideration. In Bunn v. Commercial Bank, 98 Ga. 647 (1) (26 S. E. 63), the Supreme Court said: ' “An agreement by the holder and owner of a promissory note with thé maker of the same to extend the time of its payment for an indefinite period, though based upon a valuable consideration, does not discharge a surety on such note from liability. As such an agreement would not prevent the immediate bringing of an action, the making of it really amounts to no more than ‘a mere failure by the creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies,’ and it therefore stands upon an entirely different footing from an extension for a definite period.” It was held by this court in Ver Nooy v. Pitner, 17 Ga. App. 229 (3) (86 S. E. 456), that, “in order to discharge a surety by an extension of time to the principal, not only must there be an agreement for the extension, but the proof must show that the indulgence was extended for a definite period fixed by the agree
Judgment affirmed.