Grigg v. Empire State Chemical Co.

Court of Appeals of Georgia

Grigg v. Empire State Chemical Co.

87 S.E. 149, 17 Ga. App. 385, 1915 Ga. App. LEXIS 441

CourtCourt of Appeals of Georgia

DecidedDecember 2, 1915

Docket6441

StatusPublished

Cited by3 cases

This text of 87 S.E. 149 (Grigg v. Empire State Chemical Co.) 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

Grigg v. Empire State Chemical Co., 87 S.E. 149, 17 Ga. App. 385, 1915 Ga. App. LEXIS 441 (Ga. Ct. App. 1915).

Pincite

Opinion

Wade, J.

1. Where a partnership between two persons is dissolved by the retirement of one partner, and the other continues the business and agrees to assume the debts of the firm, the retiring partner becomes a surety for his copartner. Preston v. Garrard, 120 Ga. 689 (48 S. E. 118, 102 Am. St. R. 124, 1 Ann. Cas. 724); Sheppard v. Bridges, 137 Ga. 615, 631 (74 S. E. 245).

2. A creditor of the partnership who has notice of the dissolution and of the agreement by the continuing partner to assume the debts of the firm is bound to accord, to the retiring partner all the rights of a surety. “Hence, if, without his knowledge or consent, the creditor, upon a sufficient consideration, extends the time of payment of the firm indebtedness, the retiring partner is released from the indebtedness, and the creditor must thereafter look only to the firm assets and to the individual assets of the continuing partner.” Preston v. Garrard, supra. See also Civil Code, §§ 3164, 3544; MacIntyre v. Massey, 11 Ga. App. 458 (75 S. E. 814); Tatum v. Morgan, 108 Ga. 336, 337 (33 S. E. 940); Crawford v. Gaulden, 33 Ga. 173.

[386]*386Decided December 2, 1915.

Complaint; from city court of Hall county — Judge Wheeler. February 19, 1915.

B. P. Gaillard Jr., for plaintiff in error. H. M. Rylee, Hammond Johnson, contra.

(а) Neither the original plea nor the proposed amendment alleged that there was a consideration for the extension of the time of payment of the debt.

(б) The original plea set up no defense whatever, and there was nothing to amend by.

3. It does not affirmatively appear from the record that the proposed amendment to the plea was verified in accordance with the provisions of section 5640 of the Civil Code.

4. The court did not err in refusing to allow the proffered amendment to the original plea, and in thereafter striking the plea and entering up judgment against the defendant. Judgment affirmed.

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Wade, J.

1. Where a partnership between two persons is dissolved by the retirement of one partner, and the other continues the business and agrees to assume the debts of the firm, the retiring partner becomes a surety for his copartner. Preston v. Garrard, 120 Ga. 689 (48 S. E. 118, 102 Am. St. R. 124, 1 Ann. Cas. 724); Sheppard v. Bridges, 137 Ga. 615, 631 (74 S. E. 245).

2. A creditor of the partnership who has notice of the dissolution and of the agreement by the continuing partner to assume the debts of the firm is bound to accord, to the retiring partner all the rights of a surety. “Hence, if, without his knowledge or consent, the creditor, upon a sufficient consideration, extends the time of payment of the firm indebtedness, the retiring partner is released from the indebtedness, and the creditor must thereafter look only to the firm assets and to the individual assets of the continuing partner.” Preston v. Garrard, supra. See also Civil Code, §§ 3164, 3544; MacIntyre v. Massey, 11 Ga. App. 458 (75 S. E. 814); Tatum v. Morgan, 108 Ga. 336, 337 (33 S. E. 940); Crawford v. Gaulden, 33 Ga. 173.

[386]*386Decided December 2, 1915.

Complaint; from city court of Hall county — Judge Wheeler. February 19, 1915.

B. P. Gaillard Jr., for plaintiff in error. H. M. Rylee, Hammond Johnson, contra.

(а) Neither the original plea nor the proposed amendment alleged that there was a consideration for the extension of the time of payment of the debt.

(б) The original plea set up no defense whatever, and there was nothing to amend by.

3. It does not affirmatively appear from the record that the proposed amendment to the plea was verified in accordance with the provisions of section 5640 of the Civil Code.

4. The court did not err in refusing to allow the proffered amendment to the original plea, and in thereafter striking the plea and entering up judgment against the defendant. Judgment affirmed.

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87 S.E. 149, 17 Ga. App. 385, 1915 Ga. App. LEXIS 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grigg-v-empire-state-chemical-co-gactapp-1915.

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