Lochrane v. Solomon , 38 Ga. 286 ( 1868 )

Brown, C. J.

1. The charge of the Court, in this case, confined the jury to the single inquiry whether Crawford was substituted for Lochrane as the debtor of Solomon. We think this was error. There was positive evidence that Solomon agreed to take Crawford’s liability as collateral security; and it was the duty of the Court to have permitted the jury to consider that evidence, in connection with the evidence in reference to the substitution; and to inquire whether Solomon so used this collateral security as to work injury to Lochrane; and if so, what damage resulted, by such act of Solomon, to Lochrane.

2. In 23d Ga. Reps., 181, it is ruled that the holder of collaterals is bound to due diligence, and if anything is lost by the want of it, he is to be the loser.

In 4th Ga., 442, and 18th Ga., 655, this Court held, that collaterals placed in the hands of a creditor are not the subject of garnishment. Apply these rules to this case, and what is the result? If, as the evidence of Crawford shewed, Solomon accepted his liability as collateral, for the payment of Lochrane's debt, no other creditor of Lochrane could have compelled Crawford, by process of garnishment, to pay the debt which he owed to Lochrane, and which Solomon had accepted as collateral, to any other creditor of Lochrane, till Solomon was paid. And Solomon, having given time to Crawford, in consideration of two and a half per cent, per month, and Crawford having paid him a valuable consideration for the indulgence, Lochrane could not have maintained an action against Crawford upon the liability which Solomon held as collateral, during the period for which Crawford had paid Solomon for indulgence. And it necessarily follows, under the ruling of this Court, in the case cited in 23d Ga., that Solomon, w'ho, instead'of exercising due diligence to collect the money out of Crawford, gave him indulgence for a valuable consideration, is liable, if loss accrued to Lochrane by reason of such indulgence. We are aware that the evidence is in conflict, but as Crawford's testimony sustained this view of the case, the Court should not have withdrawn from the jury the consideration of this evidence, and of the question as to the damage sustained by Locrane on account of the extension of time of payment given by Solomon to Crawford.

If the mortgage had been foreclosed by Solomon, and levied upon the printing press in the hands of Crawford, without the indulgence for which Solomon received the two and a half per cent, per month, most probably the money would have been made out of the press before it was consumedbyfire; and the Court should have permitted the jury to consider whether Lochrane sustained damage by this delay.

It is insisted in argument, that the verdict should not be disturbed, because Lochrane did not ask the Court below to give this view in charge to the jury. The charge, as given, entirely excluded this branch of the case from the considera'tion of the jury. The charge was plain and positive, and Lochrane might well suppose the Court would refuse to give in charge a proposition in the teeth of the charge already ■given. If the charge, when applied to the evidence in the case, was erroneous, as we hold it was, the fact that Lochrane did not ask the Court to give a charge in contradiction of what he had already charged, can not be a sufficient reason why the error should not be corrected.

Judgment reversed.

McCay, J., concurred, but wrote out no opinion.