Washington Loan & Banking Co. v. Clary

Court of Appeals of Georgia

Washington Loan & Banking Co. v. Clary

137 S.E. 109, 36 Ga. App. 534, 1927 Ga. App. LEXIS 132

CourtCourt of Appeals of Georgia

DecidedMarch 2, 1927

Docket17477

StatusPublished

This text of 137 S.E. 109 (Washington Loan & Banking Co. v. Clary) 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

Washington Loan & Banking Co. v. Clary, 137 S.E. 109, 36 Ga. App. 534, 1927 Ga. App. LEXIS 132 (Ga. Ct. App. 1927).

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Opinion

Stephens, J.

(After stating the foregoing facts.) The only evidence tending to establish a contract between Clary and the bank, releasing Clary from his obligation as surety upon the note, is Clary’s testimony as to his conversation with Barksdale, the cashier of the bank. Taking Clary’s testimony most strongly against him (as must be done, since he is a party to the ease), it must be construed as stating that in this conversation Barksdale informed him that Burdett “had endorsed” the note, and that Barksdale “had taken Burdett on the note” as a substituted surety for Clary. This conversation constituted no contract between the bank and Clary. It can .prove no more than that the bank, through [536]*536Barksdale, had already made an agreement with Burdett whereby Bnrdett was to be taken as a substituted surety for Clary. Barks-dale merely stated what he had already done. He made no promise to Clary, and since Clary had made no promise to the bank nor had performed any act for the bank, Barksdale, in stating that he had put Burdett’s name upon the note, accepted no act or promise of Clary.

There being no evidence authorizing a jury to find that Clary had a contract with the bank by which he was released as a surety upon the note, the verdict for him was unauthorized.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

(After stating the foregoing facts.) The only evidence tending to establish a contract between Clary and the bank, releasing Clary from his obligation as surety upon the note, is Clary’s testimony as to his conversation with Barksdale, the cashier of the bank. Taking Clary’s testimony most strongly against him (as must be done, since he is a party to the ease), it must be construed as stating that in this conversation Barksdale informed him that Burdett “had endorsed” the note, and that Barksdale “had taken Burdett on the note” as a substituted surety for Clary. This conversation constituted no contract between the bank and Clary. It can .prove no more than that the bank, through [536]*536Barksdale, had already made an agreement with Burdett whereby Bnrdett was to be taken as a substituted surety for Clary. Barks-dale merely stated what he had already done. He made no promise to Clary, and since Clary had made no promise to the bank nor had performed any act for the bank, Barksdale, in stating that he had put Burdett’s name upon the note, accepted no act or promise of Clary.

There being no evidence authorizing a jury to find that Clary had a contract with the bank by which he was released as a surety upon the note, the verdict for him was unauthorized.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.

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Bluebook (online)

137 S.E. 109, 36 Ga. App. 534, 1927 Ga. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-loan-banking-co-v-clary-gactapp-1927.