Chamberlain & Bancroft v. Stone

24 Ga. 310

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

Benning, J.

By the Court. delivering the opinion.

What is contained in the first paragraph of the charge, is right.

[1.] The taking of the new note by the plaintiff was, at least, a suspension of their right to demand payment of the debt, until the new note fell due; and, therefore, the effect was, to put the debt in such a condition that Stone would no longer have the right, to pay it up immediately, and demand contribution from Johnson, but would have to wait till the note fell due, before he could pay it up, and demand this contribution. An arrangement or agreement between the plaintiffs and Johnson, having such an effect as this, was sufficient to discharge Stone. So it was held by this Court, in this case, when the case was up before. 20 Ga. 262.

What is thus said of this part of the charge, disposes also, of the first and second requests to charge.

The second paragraph of the charge, is certainly good as far as it goes.

The third paragraph of the charge, seems to us to be erroneous.

[2.] A subsequent ratification, with a knowledge of the facts, will make good the act even of one who is not agent; a subsequent promise, with knowledge of the facts, will revive a debt barred by the statute of limitations, a debt barred by bankrupt laws, a debt from which the endorser has been discharged, by the negligence of the holder.

The decisions that support these positions arenowtoo numerous, and of too long standing, to be resisted, although they are it must be admitted, in the very teeth of the great common law maxim, that a contract without consideration, is not binding.

What is thus said of this part of the charge disposes aIso? of the third fourth and fifth requests.

There ought to be a new trial.

Judgment reversed.