Guggenheimer & Co. v. Gilmore , 29 Ga. App. 540 ( 1923 )

Jenkins, P. J.

1. Although an instrument in the form of a guaranty does not indicate a meeting of the minds of the parties by virtue of any recital that it is made in accordance with the request of the 'party by whom the credit was to be extended, still, where the terms of the promise to pay are absolute, and notice of acceptance is expressly waived by the writing, no notice of acceptance to the guarantors by the guarantee is required in order to render the instrument binding, but actual acceptance manifested merely by extending the credit authorized by such direct and unconditional promise is sufficient to render the instrument effective as a contract; and where neither the terms of the writing nor the circumstances surrounding its execution and delivery evince a contrary intention, upon the instrument being thus rendered effective as a binding contract, it remains so until revoked. Manry v. Waxelbaum Co., 108 Ga. 14, 21 (33 S. E. 701); Carson v. Hurst, 137 Ga. 640 (74 S. E. 52, Ann. Cas. 1913A, 1086); Sheffield v. Whitfield, 6 Ga. App. 762, 763 (65 S. E. 807); Sheppard v. Daniel Miller Co., 7 Ga. App. 760 (68 S. E. 451); Peck v. Precision Machine Co., 20 Ga. App. 429 (93 S. E. 106); 28 C. J. 908 (§ 34). Notice of acceptance is not, however, synonymous with such actual acceptance, nor is the latter dispensed with because the former may not be required. In contracts of guaranty, as in all other contracts, in order for the terms of the agreement to be effective, there must be an actual meeting of the minds of the parties upon the same thing and in the same sense. Thus, where an instrument in the form of a guaranty, which contemplates acceptance by a mere extension of the credit authorized, appears on its face to be purely voluntary, in that it indicates no meeting of the minds of the parties by any recital of a previous request or of any consideration from the person to be guaranteed, there can be no binding and continuing contract of guaranty unless and until it is given effect by being thus actually accepted within a reasonable time. In such a ease a failure to accept may be evidenced by an actual refusal to extend the credit on the faith and under the terms of the written promise to. indemnify. This rule is not in conflict with Keiley v. Cleage, 150 Ga. 215 (103 S. E. 167), in which case the contract had' become effective and binding.

Decided February 10, 1923.

2. “ Under the settled and fundamental policy of our law as embodied in section 4863 of the Civil Code of 1910, it is reversible error for the trial judge to express or to intimate his opinion as to what has or has not been proved; but the court may properly propound questions to a witness with a view to eliciting the truth of the case, especially where the purpose of such interrogation is to render definite the meaning of testimony otherwise vague, provided that in so doing no expression or impression is given of any opinion held by the judge as to what has been proved, or as to the credibility of the witness, or as to which party should, under the evidence, prevail.” Weeks v. Reliance Fertilizer Co., 20 Ga. App. 498 (93 S. E. 152).

Judgment affirmed.

Stephens and Bell, JJ., concur. Franklin & Lang dale, Jeff. A. Pope, for plaintiff. E. D. Rivers, S. P. Cain, for defendant.