Fraser v. McConnell

23 Ga. 368

• Court: Supreme Court of Georgia
• Decided: August 15, 1857
• Status: Published

Opinion

By the Court. —

Lumpkin J.,

delivering the opinion.

We think the weight of evidence in this case, strongly and decidedly against the verdict of the jury in the Justices* Court, and the judgment of the Superior Court, affirming that finding.

Still, we might not feel it to be our duty to interfere, were we not persuaded that the law of the case was misapprehended. It would seem that in both Courts, it was supposed that, if A. buys property and makes a gift of a portion of it to B., and B. unites with A. in giving a note to C., under an understanding, that B. is the security only of A., that this makes B. a principal with A. to the original contract. But this, we apprehend, is not the law. B. was no party with A. in the purchase, neither did he participate in the consideration, as coming from C., and the subsequent gift from A., could not constitute B. a principal.

And with the law thus expounded, all the testimony harmonizes and goes to show, that James Fraser was security only to Craven Fraser. The goods were charged in the sale bill, to Craven Fraser. By the terms of the sale, security was to be given on all purchases amounting to more than five dollars, and yet, Craven and James Fraser’s were the only two names to the note. Did not the payee believe that James Fraser was security for Craven ?

McConnell then, admitting as he does, that he was notified to sue, and failing to do so, within the three months prescribed by the statute, James Fraser was discharged. And this would seem to be the justice of the case under any view of it. The purchases amounted to a fraction under thirty dollars. The old loom given by Craven Fraser to James5 wife for washing his clothes, and charging him nothing for it the previous year, only cost four dollars and a quarter. There being then, no joint or common interest between Craven and James, in the remainder of the articles, it would seem hard for James not to be allowed the protection afforded him by the Legislature, by the neglect of the creditor to sue.

Judgment reversed.