Marchman v. Roberson, Taylor & Co.

1 Ga. L. Rep. 370

• Court: Supreme Court of Georgia
• Decided: July 1, 1886
• Status: Published

Opinion

Blandford, J.

In answer to a rule nisi to foreclose a mortgage on realty, the defendant pleaded that she was only a security on the note to secure which the mortgage was given; that she was induced to sign such note by the false and fraudulent representations of the plaintiffs,, through their agent, that they would furnish the principal with a certain fertilizer to sell in a stated territory covered by certain railroads in this state; that the princiral had placed two hundred and fifty tons of the fertilizer, but the mortgagees had failed and refused to furnish him-therewith; and that, if they had done so, he would have been enabled to have paid the note and saved her harmless.

Held,that this answer’set out conduct on the part of the mortgagees-which was calculated to injure the surety, increase her risk or expose her to greater liability, and which would, therefore, discharge her, and it was error to strike the answer on demurrer.

(a) If the defendant was induced to become surety for the prinei„ pal by the false and fraudulent representations of the plaintiffs, this was a fraud which would avoid her contract of suretyship..

Judgment reversed.