Fideltiy & Cas. Co. of New York v. Van Dyke

• Decision Date: 02 November 1896
• Citation: 27 S.E. 709,99 Ga. 542
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. VAN DYKE.
• Court: Georgia Supreme Court

27 S.E. 709

99 Ga. 542

FIDELITY & CASUALTY CO. OF NEW YORK v. VAN DYKE.

Supreme Court of Georgia

November 2, 1896

Syllabus by the Court.

Where one, not a party to a promissory note, by a writing indorsed thereon and signed by himself, undertakes to pay a portion of the principal sum due thereon, and is sued upon his contract so expressed, and it appears from the declaration that the maker, prior to the institution of the action, had paid upon the note a sum in excess of the amount stated in such writing, it will, in the absence of an allegation that such sum was paid before, be presumed it was paid after, such undertaking; and a demurrer to the declaration upon the ground that the defendant was discharged by such payment, and that, therefore, as against him, the declaration stated no cause of action, was properly sustained.

Error from city court of Floyd; G.A.H. Harris, Judge.

Action by the Fidelity & Casualty Company of New York against R.D Van Dyke. From a judgment sustaining a demurrer to the complaint, plaintiff brings error. Affirmed.

Reece & Denny, for plaintiff in error.

McHenry Nunnally & Neel, for defendant in error.

ATKINSON J.

Whether Van Dyke be treated as a surety or guaranter, his agreement amounted to nothing more than an engagement upon his part that the maker of the note should pay at least $150 upon the sum for which it was given. When that sum was paid by the maker, Van Dyke was discharged. This sum was paid before the institution of the suit, and it was urged in reply to the demurrer that it did not appear that the indorsement under which Van Dyke bound himself was made before the payment of that sum. The presumption would be, inasmuch as he undertook to guaranty a specific portion of the debt, that his engagement was entered into at the time of the execution of the note, otherwise the declaration would have alleged the fact that he had signed the indorsement under such circumstances as would make him absolutely liable for the sum still due upon the note. In the absence of such an allegation, it will be presumed not to be true. Pleadings are taken most strongly against the pleader, and the presumption is that he has alleged in the declaration all facts consistent with the truth which would impose a liability upon the defendant. There being no allegation in the declaration that the indorsement was made after the payment of the sums credited upon the note, and it appearing...