Gay v. Carpenter

Court of Appeals of Georgia

Gay v. Carpenter

134 S.E. 803, 35 Ga. App. 768, 1926 Ga. App. LEXIS 1113

CourtCourt of Appeals of Georgia

DecidedSeptember 23, 1926

Docket16715

StatusPublished

Cited by2 cases

This text of 134 S.E. 803 (Gay v. Carpenter) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gay v. Carpenter, 134 S.E. 803, 35 Ga. App. 768, 1926 Ga. App. LEXIS 1113 (Ga. Ct. App. 1926).

Pincite

Opinion

Stephens, J.

1.- The failure of the seller of personal property to record the written contract which reserves in the seller an interest in the property sold as security for the balance of the purchase money does not result in a discharge of the surety on the contract where it appears that the surety was not damaged. Seymour v. Bank of Thomasville, 157 Ga. 99 (4) (124 S. E. 578).

2. Protest of a promissory note is not required as against a surety thereon. Hunnicutt v. Perot, 100 Ga. 312 (27 S. E. 787) ; Connor v. Hodges, 7 Ga. App. 153 (3 a) (66 S. E. 546) ; James v. Calder, 7 Ga. App. 707 (67 S. E. 1125).

3. An indulgence in payment of a promissory note, granted by the payee to the maker, which is without consideration, does not constitute an agreement that will release a surety. Civil Code (1910), § 3544; Baumgartner v. McKinnon, 10 Ga. App. 219 (73 S. E. 519).

4. A retaking of property by the seller, for the purpose of holding it until the purchaser, who is the maker of a note for it, has paid part of the purchase money, and a release of the property then to the purchaser, [769]*769does not constitute a rescission of the contract. Where such retaking in no -wise increases the surety’s risk, the surety is not released.

Decided September 23, 1926. H. G. Hatcher, G. G. Anderson, for plaintiff in error. E. M. Pricecontra.

5. This being a suit by tile seller of personalty against the signers of a purchase-money note in which title to the property was retained in the seller as security for the debt, and the defense interposed by one of the defendants, who signed ostensibly as a maker of the note, being that he was a surety only, and that he was released from his obligation as such by certain acts and conduct of the plaintiff, it follows, from an application of the above rulings to the undisputed evidence, that none of the acts injured the surety or increased his risk, and a verdict for the plaintiff was properly directed.

Judgment affirmed.

Jenjoins, P. J., and Bell, J., concur.

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Stephens, J.

1.- The failure of the seller of personal property to record the written contract which reserves in the seller an interest in the property sold as security for the balance of the purchase money does not result in a discharge of the surety on the contract where it appears that the surety was not damaged. Seymour v. Bank of Thomasville, 157 Ga. 99 (4) (124 S. E. 578).

2. Protest of a promissory note is not required as against a surety thereon. Hunnicutt v. Perot, 100 Ga. 312 (27 S. E. 787) ; Connor v. Hodges, 7 Ga. App. 153 (3 a) (66 S. E. 546) ; James v. Calder, 7 Ga. App. 707 (67 S. E. 1125).

3. An indulgence in payment of a promissory note, granted by the payee to the maker, which is without consideration, does not constitute an agreement that will release a surety. Civil Code (1910), § 3544; Baumgartner v. McKinnon, 10 Ga. App. 219 (73 S. E. 519).

4. A retaking of property by the seller, for the purpose of holding it until the purchaser, who is the maker of a note for it, has paid part of the purchase money, and a release of the property then to the purchaser, [769]*769does not constitute a rescission of the contract. Where such retaking in no -wise increases the surety’s risk, the surety is not released.

Decided September 23, 1926. H. G. Hatcher, G. G. Anderson, for plaintiff in error. E. M. Pricecontra.

5. This being a suit by tile seller of personalty against the signers of a purchase-money note in which title to the property was retained in the seller as security for the debt, and the defense interposed by one of the defendants, who signed ostensibly as a maker of the note, being that he was a surety only, and that he was released from his obligation as such by certain acts and conduct of the plaintiff, it follows, from an application of the above rulings to the undisputed evidence, that none of the acts injured the surety or increased his risk, and a verdict for the plaintiff was properly directed.

Judgment affirmed.

Jenjoins, P. J., and Bell, J., concur.

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134 S.E. 803, 35 Ga. App. 768, 1926 Ga. App. LEXIS 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gay-v-carpenter-gactapp-1926.

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