Shank v. Washington Exchange Bank

Supreme Court of Georgia

Shank v. Washington Exchange Bank

52 S.E. 621, 124 Ga. 508, 1905 Ga. LEXIS 764

CourtSupreme Court of Georgia

DecidedDecember 21, 1905

StatusPublished

Cited by1 cases

This text of 52 S.E. 621 (Shank v. Washington Exchange Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shank v. Washington Exchange Bank, 52 S.E. 621, 124 Ga. 508, 1905 Ga. LEXIS 764 (Ga. 1905).

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Opinion

LüMPKIN, J.

(After stating the facts.) Where a suit is brought against several defendants, some of whom are in fact sureties for another, if this does not appear on the face of.the contract it may be proved by parol, either before or after judgment, the creditor not being delayed in his remedy by such collateral issue between the principal and the surety. Civil Code, §2984; Whitley v. Hudson, 114 Ga. 668; Camp v. Simmons, 62 Ga. 85; Cauthen v. Central Georgia Bank, 69 Ga. 733. This rule applies where the relation of principal and surety in reality exists, although it does not appear on the face of the contract. In the case now under consideration the defendants who filed this plea did not allege that they were in fact sureties for Holland or signed as such, or that the relation of principal and sureties was ever contemplated between them. They were debtors of Holland, not sureties for him. Louisa J. Shank signed as surety for the other two, not for Holland. If they have any' claim against Holland, it is not because they are sureties for him, but because they gave him a note for certain worthless machinery and are subject to judgment because the note was transferred to an innocent purchaser for value without notice. Want of consideration or failure of consideration for a promissory note does not create the relation of principal and surety between the makers of the note and the payee, although it may have been indorsed to an innocent purchaser, and the makers may be unable to assert their defense against the holder. The plea was properly stricken.

Judgment affirmed.

All the Justices concur.

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LüMPKIN, J.

(After stating the facts.) Where a suit is brought against several defendants, some of whom are in fact sureties for another, if this does not appear on the face of.the contract it may be proved by parol, either before or after judgment, the creditor not being delayed in his remedy by such collateral issue between the principal and the surety. Civil Code, §2984; Whitley v. Hudson, 114 Ga. 668; Camp v. Simmons, 62 Ga. 85; Cauthen v. Central Georgia Bank, 69 Ga. 733. This rule applies where the relation of principal and surety in reality exists, although it does not appear on the face of the contract. In the case now under consideration the defendants who filed this plea did not allege that they were in fact sureties for Holland or signed as such, or that the relation of principal and sureties was ever contemplated between them. They were debtors of Holland, not sureties for him. Louisa J. Shank signed as surety for the other two, not for Holland. If they have any' claim against Holland, it is not because they are sureties for him, but because they gave him a note for certain worthless machinery and are subject to judgment because the note was transferred to an innocent purchaser for value without notice. Want of consideration or failure of consideration for a promissory note does not create the relation of principal and surety between the makers of the note and the payee, although it may have been indorsed to an innocent purchaser, and the makers may be unable to assert their defense against the holder. The plea was properly stricken.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

52 S.E. 621, 124 Ga. 508, 1905 Ga. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shank-v-washington-exchange-bank-ga-1905.

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