La Boon v. Wright & Locklin

155 S.E. 770, 42 Ga. App. 275, 1930 Ga. App. LEXIS 335

• Court: Court of Appeals of Georgia
• Decided: November 11, 1930
• Docket: 20764
• Status: Published

Opinion

Broyles, C. J.

This was a suit upon a promissory note signed by the plaintiff in error and his tenant. The note contained a retention of title to the property sold (a mule), as security for the debt, and was not recorded within the time required by law. The defendant La Boon pleaded that he signed the note as surety only, and that he had been released by the failure of the plaintiffs to record the instrument within the proper time. After the introduction of evidence by both parties the court, on- motion of counsel for the plaintiffs, directed a verdict in favor of the plaintiffs, and the defendant excepted. Held: Conceding that the evidence authorized a finding that the defendant La Boon had signed the note as surety, and that this fact was known to the plaintiffs when they accepted the note, the failure of the plaintiffs to record the retention-of-title contract within the time required by law did not discharge the surety, since it is clearly apparent, under all the facts of the case, that the surety was not injured in the slightest degree by such failure. See, in this connection, Cheshire v. Hightower, 33 Ga. App. 793 (2) (127 S. E. 891), and cit. The refusal of the court to allow the defendant to testify that he had sustained a loss by having to feed the mule for two years when he had no use for it was not error, since, under the facts of the case, such a loss was not caused by the omission to promptly record the retention-of-title contract. The direction of the verdict was not error. The request of the defendant in error that damages be assessed for bringing up the case for delay, under Civil Code, § 6213, is denied.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.