Bonner v. Nelson , 57 Ga. 433 ( 1876 )

Bleckley, Judge.

1. If the renewal note was incomplete for lack of the signature of one of the sureties who had signed the former note, and the creditor accepted it, knowing it to be incomplete, it would not be binding upon the surety who signed it. But if the latter signed and delivered the note to the principal, with no understanding, express or implied, that if was to be signed by the former co-surety; or if there was such an understanding, and the principal, in violation of it, delivered the note to the creditor, and the creditor took it and surrendered the old note, without any notice that the principal was acting in breach of his instructions or of his duty, then, the creditor, having been wholly innocent in the transaction, would be entitled to stand on the renewal note as a complete and binding contract between the makers of that note and himself: See the case cited in 1 Central Law Journal, 560; compare, also, 6 Georgia Reports, 202; 8 Ibid., 559; 10 Ibid., 414; 11 Ibid., 286; 13 Ibid., 61; 17 Ibid., 111. The surety who signed the note cannot protect, himself against the consequences of a delivery by his principal, without taking both steps; he must show that the instrument was incomplete, and that the creditor

knew it. Both points should be distinctly alleged in the plea, so as to be issuable. Neither of them should be presented argumentatively only. They can both be directly pleaded, if they are true; and if only one of them, or if neither of them, be true, no amount of indirect, argumentative pleading can avail.

2, 3. The note mentioned no' particular medium of payment. It was a note for money. The original debt was not a Confederate debt. The creditor was a guardian, and, as to him, the fund was a trust fund. He was under no obligation, legal or moral, to accept payment in depreciated currency, such as Confederate treasury notes, unless he had thought it was for the benefit of his ward to do so. It was his right to reject such currency when offered by the principal debtor in payment. He did not, thereby, discharge the surety. A different result, in that respect, would probably have followed the rejection of an offer to pay in actual money: See 2 Paige, 497; 46 Vt., 258; 25 Mich., 351 ; 35 Md., 262; 9 Gill, 284; 56 N. Y., 348. The creditor’s promise not to call for payment until after the close of the war, was without consideration. It was a naked promise, made to get clear of making an absolute refusal of the Confederate currency. The odium, perhaps the danger, of such a refusal may have been calculated to injure him; but if so, his debtor had no right to raise the peril, and then grant exemption from it at the ward’s expense. The debtor knew he was dealing with a guardian, and not with a creditor who had a right to consult his personal advantage.

4. The promise itself did not discharge the surety, nor did the keeping of it discharge him, although the principal became insolvent. There being no consideration or valid contract between the parties, the forbearance was mere indulgence. The creditor might have brought suit at any time. He did not tie his hands. And there was no legal benefit resulting to him. Not even was there a new point established for the statute of limitations to commence running, as there was said to be in the case reported in 27 Georgia Hepbrts, 564. When the present case arose, the Code, section 2934, was in force; and the promise with which we are now dealing was oral. It was a complete nullity: 33 Georgia Reports, 173.

Judgment reversed.