Simmons v. Guise

46 Ga. 473

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendants on a promissory note for the sum of $200, payable to Hiers or bearer sixty days after date. On the trial the jury found a verdict against J. M. Simmons for $200. A motion was made for a new trial on the grounds specified in the record, which was granted by the Court, unless the plaintiff should remit on the record the sum of $65 to plaintiff on the Six note, and if he does so the new trial denied. Whereupon the defendant excepted. From the facts disclosed in this confused record, as we understand them, a new trial should have been granted absolutely. The defendant, Simmons, signed the Hiers’ note as security. If that note constituted a part of the partnership liability of Guise & Six, and upon a settlement of their partnership affairs, that note was settled by the taking of Six’s note by the plaintiff, and if J. M. Simmons, the security, was not present, assenting thereto, that would discharge him from the payment of the Hiers’ note to the plaintiff. There is evidence in the record which looks that way. In our judgment, there should be a new trial in the case, and that question submitted to the jury under the charge of the Court.

Let the judgment of the Court below be reversed.