Dunlop Milling Co. v. Collier

92 S.E. 296, 19 Ga. App. 725, 1917 Ga. App. LEXIS 328

Opinions

George, J.

1. Where a creditor entered into an agreement with the principal debtor, and the principal debtor communicated the terms of the agreement to another person for the purpose of inducing -him to become a surety on promissory notes to the creditor, and where the facts and circumstances were such as to authorize a finding, in a suit upon the notes, that the creditor contemplated that the terms and conditions of the agreement would be communicated to the surety for the purpose of inducing him to sign the notes, it was competent for the surety to show the agreement between the creditor and the principal debtor; that knowledge of this agreement was communicated to him; that he became surety upon the notes because of the existence of the agreement, and that the agreement was breached by the creditor.

2. Any act of the creditor against the principal debtor which tends to increase the risk of the surety or to expose him to greater liability will discharge the surety. Blackburn v. Morel, 13 Ga. App. 516 (79 S. E. 492); Civil Code (1910), § 3544.

Decided April 9, 1917. Rehearing denied May 3, 1917.

Certiorari; from Fulton superior court—Judge Bell. October 16, 1916.

Smith, 'Hammond & Smith, John T. Hardisty, for plaintiff. Hines & Jordan, Tye, Peeples & Tye, Daley, Chambers & Daley, for defendant.

3. The facts and circumstances in this case were sufficient to authorize a finding that the contract between the creditor and the principal debtor was to continue at least to the time of maturity of the last of the series of notes signed by the surety; and in view'of the rejection of the evidence indicated in paragraph 1 of this decision, the appellate division of the municipal court of Atlanta was authorized to grant the surety a new trial, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.