Fields v. Shores-Mueller Co.

Broyles, C. J.

1. Ordinarily before an action can be maintained against a guarantor, it must be shown that the principal is unable to perform. Manry v. Waxelbaum, 108 Ga. 14 (33 S. E. 701); Musgrove v. Publishing Co., 5 Ga. App. 279 (63 S. E. 52).

(a) The decision in Fonché v. Cherokee National Bank, 18 Ga. App. 569 (90 S. E. 102), and the authorities there cited, apply to undertakings of a different character from that involved in the instant case.

2. This was a suit against guarantors, and, while the insolvency of the principal was alleged in the petition, there was no evidence whatever to sustain that allegation. The verdict against the guarantors was therefore unsupported by the evidence,, and the court erred in overruling the motion for a new trial.

3. In view of the above ruling, it is unnecessary to consider the special grounds of the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.