Price v. Webster & Palmes

30 Ga. 802

• Court: Supreme Court of Georgia
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court.

Stephens, J.,

delivering the opinion.

A single view disposes of the case now and hereafter, and it.is unnecessary to allude to the numerous points presented in it. We think the verdict is against the evidence. Price guaranteed the payment of half the debts of Davis & Allen, but not a dollar of the pre-existing debts of Davis; and this note was in effect founded on one of those pre-existing debts, and not on a debt of Davis and Allen. The payments made by Davis & Allen, if applied to their own indebtment instead of'to that of Davis, would have left nothing due from them when this note Avas given, and the plaintiffs were bound for the correct application of the payments, and are bound now to consider and treat the payments as having been applied as they ought to have been applied. The funds of Davis & Allen ought to have been applied to the debts of Davis & Allen. Whether or not the misapplication was made with the consent of Davis & Allen, is immaterial; for, Avhile the plaintiffs were not bound for the good faith of these principal debtors in transactions with other people, they were bound for their good faith in all transactions with themselves, depending on their own consent. The plaintiffs could not consent to a Avrong application of the funds without a violation of good faith to the guarantor, and the guarantor is entitled to treat the Avrong application as a nullity,'and to stand where he Avould do, if the right one had been made.

J udgment reversed.