Scarboro v. Kalmon

Court of Appeals of Georgia

Scarboro v. Kalmon

78 S.E. 686, 13 Ga. App. 28, 1913 Ga. App. LEXIS 13

CourtCourt of Appeals of Georgia

DecidedJune 25, 1913

Docket4825

StatusPublished

Cited by1 cases

This text of 78 S.E. 686 (Scarboro v. Kalmon) 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

Scarboro v. Kalmon, 78 S.E. 686, 13 Ga. App. 28, 1913 Ga. App. LEXIS 13 (Ga. Ct. App. 1913).

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Opinion

Pottle, J.

This was an action on a contract of guaranty. The facts as set forth in the petition are fully stated in the opinion of this court in Kalmon v. Scarboro, 11 Ga. App. 547 (75 S. E. 846), when the case was here on demurrer to the petition. The principles then decided control the case. The fact that one of .the guarantors did not consent to the execution of the promissory ■notes by the debtor was immaterial, as was also the fact of the execution of the notes themselves. The contract of the guarantors was to pay if the debtor failed to pay at maturity. The creditor is not attempting to enforce the notes, or to enlarge the liability of the guarantors or to increase their risk. The notes were merely a form of security for the payment of the account, and really operated to the benefit of the guarantors, rather than otherwise. The notes contained a waiver of homestead; and if the guarantors pay [29]*29the debt and take a transfer of the notes, they will be in a better position to enforce their claim against the original debtor than if they held simply an assigned open account. We can not see how the execution of the notes by the debtor operated to discharge the guarantors. See Case v. Howard, 41 Iowa, 479; Smith v. Dann, 6 Hill (N. Y.), 543. Judgment affirmed.

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Pottle, J.

This was an action on a contract of guaranty. The facts as set forth in the petition are fully stated in the opinion of this court in Kalmon v. Scarboro, 11 Ga. App. 547 (75 S. E. 846), when the case was here on demurrer to the petition. The principles then decided control the case. The fact that one of .the guarantors did not consent to the execution of the promissory ■notes by the debtor was immaterial, as was also the fact of the execution of the notes themselves. The contract of the guarantors was to pay if the debtor failed to pay at maturity. The creditor is not attempting to enforce the notes, or to enlarge the liability of the guarantors or to increase their risk. The notes were merely a form of security for the payment of the account, and really operated to the benefit of the guarantors, rather than otherwise. The notes contained a waiver of homestead; and if the guarantors pay [29]*29the debt and take a transfer of the notes, they will be in a better position to enforce their claim against the original debtor than if they held simply an assigned open account. We can not see how the execution of the notes by the debtor operated to discharge the guarantors. See Case v. Howard, 41 Iowa, 479; Smith v. Dann, 6 Hill (N. Y.), 543. Judgment affirmed.

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Bluebook (online)

78 S.E. 686, 13 Ga. App. 28, 1913 Ga. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scarboro-v-kalmon-gactapp-1913.

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