Rogers v. Burr , 97 Ga. 10 ( 1895 )

Janes, Judge.

1. The official report sets out fully the declaration as amended, the demurrer, and the contract sued on. This contract, on the faith of which the administrator of Chambers subscribed for sixty shares of stock in the Barnesville Manufacturing Company, stipulates that if, at the expiration of three years from December 1st, 1889, the subscriber desires no longer to carry the stock, the plaintiffs in error will, “with thirty days notice,” pay such subscriber par value for the same. This provision gave to the subscriber the right, at the expiration of three years from the time stated, to elect whether he would keep the stock, or turn it over to plaintiffs in error, and require them to pay him therefor its par value. He had no right to make this election before the expiration of the time. The time for such election expired at midnight on November 30th, 1892, and it could not have been made until the full expiration of the time. The position that the election ought to have been made on the last moment of the last day is too absurd to seriously consider. It follows that the time for the exercise of the right was after the expiration of the three years. The word “at” in this contract is equivalent in meaning to “after.” It was held in Annon v. Baker, 49th N. H. 169, cited in American and English Encyclopedia of Law, vol. 1, first edition, page 893, note, that, “At the end of one year,” means “at the expiration of one full and entire year,” and that “at” is equivalent in meaning to “after.” If the word “after” is substituted for “at” in the contract under review, there can be no doubt about the correctness of the construction given to it in the head-note. As the election could be made after the expiration of the time limited, of course a reasonable time was allowable for this purpose.

2. Plaintiffs in error in their contract guarantee the payment of an annual dividend, equal to eight per cent, per annum from December 1st, 1889, on the money paid into the company on the stock. It is alleged in the declaration that no dividends have been received, but there is no allegation that any rotice was ever given to plaintiffs in error of the failure by the company to pay such dividends. They contend that such notice was necessary in order to make them liable on their guaranty. The guaranty is absolute and unconditional, and there is no stipulation whatever in the contract requiring the subscribers for the stock to notify the gTiarantor of the company’s failure to pay dividends. It was the duty of the plaintiffs in error to know of the default of the company, and information could have been easily obtained by inquiry of tbe company or of defendant in error. In tbe case of an absolute guaranty, no condition being annexed to tbe contract, no condition is implied by law requiring notice to tbe guarantor of tbe default of tbe principal. Having guaranteed unconditionally tbe performance of a contract by a third person, tbe guarantor must at'bis peril see that tbe contract is performed. Tbe authorities on this question in other States are numerous and somewhat conflicting. See Heyman v. Dooley, Lawyers Reports Annotated, Book 20, page 257. But be this as it may, tbe rule above enunciated is sustained by tbe decisions of this court in Wright v. Shorter, 56 Ga. 72; Gammell v. Paramore, 58 Ga. 54.

3. Tbe defects in tbe declaration pointed out by tbe demurrer are cured by tbe amendments; and tbe declaration as amended contains a good cause of action. There was no error in overruling tbe demurrer. Judgment a'ffirmed.