Longley v. Johnson

95 S.E. 315, 22 Ga. App. 96, 1918 Ga. App. LEXIS 168

• Court: Court of Appeals of Georgia
• Decided: March 15, 1918
• Docket: 9433
• Status: Published

Opinion

XjJJKE, J.

1. A parol notice or request to the creditor, by a surety upon a promissory note, to bring suit, will not operate as a compliance with the statute (Civil Code of 1910, § 3546), which authorizes a surety, at any time after the debt is due, to give, notice in writing to the creditor to' proceed to collect the debt out of the principal, or of itself have the effect to discharge the surety. See Johnson v. Longley, 142 Ga. 814 (83 S. E. 952).

(a) If, however, the surety is assured by the holder of the note that suit will be brought to the next term of the court, and because of such

' assurance he foregoes means of indemnity and protection, and such suit is not brought, he will be discharged to the extent of the resulting loss. \

2. The defendant having admitted a prima facie-case, and, the evidence in his behalf not having the legal effect of sustaining a defense to the note sued on, the court did not err in directing a verdict for the plaintiff.

3. The assignments of error as to the admissibility of evidence are without merit. See Polhill v. Postal Telegraph Co., 16 Ga. App. 601 (3) (85 S. E. 936).

Judgment' affirmed.

Wade, O. J., and JenJdns, J., eoneur.