Graham v. Marks

• Decision Date: 21 December 1895
• Parties: GRAHAM v. MARKS et al.
• Court: Georgia Supreme Court

25 S.E. 931

98 Ga. 67

GRAHAM v. MARKS et al.

Supreme Court of Georgia

December 21, 1895

Syllabus by the Court.

1. As a general rule, a promissory note, executed under the duress of the principal by legal imprisonment, is not void as to a surety thereon, if the latter, being under no duress, and knowing of the duress of the principal, nevertheless voluntarily signed the note; and, though knowledge of the fact of the principal's imprisonment does not necessarily involve knowledge on the part of the surety of its want of legality, a plea by the latter, alleging that the principal signed under duress of imprisonment, even if in other respects good, ought to allege that the imprisonment was illegal, or, if legal, was used for an illegal purpose, and that the surety was ignorant as to its real character, and therefore ignorant of the duress.

2. A surety upon a promissory note cannot be legally defrauded by a promise, made by another, to have the principal appointed to a public office, even though such promise was made for the purpose of inducing the surety to sign. A promise of this kind, being contrary to the policy of the law, could not, in legal contemplation, mislead the person to whom it was made.

3. A plea attempting to allege that a promissory note was given in whole or in part, for the purpose of settling a threatened prosecution for a criminal offense, is not legally complete unless it alleges facts showing that the person to be prosecuted was charged with having committed an act or acts constituting a crime or misdemeanor.

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by S. Marks & Co. against Eliza J. Graham. From an order sustaining a demurrer to her plea, defendant brings error. Affirmed.

The following is the official report:

Marks & Co., by their declaration, alleged that C. M. Davis and Eliza J. Graham were indebted to them on four promissory notes each for $85, with interest, and 10 per cent. attorney's fees, and that L. E. Davis and M. Foote, Jr., attorney for Brown Bros., were indorsers on the notes. From the copy note attached it appeared that the notes were dated April 7, 1891 were due six months after date, and were payable to M. Foote Jr., attorney for Brown Bros. Davis was not served. Mrs Graham filed a plea, which plea was demurred to, the demurrer was sustained, and she excepted. The plea was: She is not indebted to plaintiffs, for the following reasons: She is merely security on the notes, and the circumstances under which she signed the notes are as follows: Said Davis purchased from Brown Bros., at some point in the state of Alabama, in the first part of 1893, or the latter part of 1892, a lot of lumber, for which he failed to pay, the lumber having been shipped here and disposed of by said Davis. Brown Bros. ordered said Davis' arrest, charging that he had defrauded them out of said lumber. Davis was arrested in the town of West End by the marshal thereof, and at said Davis' request (this defendant being his aunt) that he be carried to this defendant's house, stating that she would sign a note for him, he was carried there. Whereupon, it was understood that, in the event that she did this, defendant would be released. Davis was accompanied to her house by the marshal of West End, and as this defendant now remembers, by Mord. Foote, Esq., counsel for the plaintiff in this case. The said marshal, to wit, Caldwell, told this defendant, unless she became Davis' security, and settled the matter by uniting with him in a note covering the indebtedness of Davis to Brown Bros., that said Davis would be locked up in Fulton county jail, carried back to the state of Alabama, and there prosecuted on the charge of cheating and swindling. Said Caldwell also told this defendant that, in the event she should sign the note, he would see to it that said Davis would get a position on the police force in the town of West End, and that would pay him a salary of $50 per month, and that by the time the notes matured said Davis would have made money enough to have almost extinguished said notes, and then and there agreed to give said Davis a position on the police force, in the event this defendant signed the note. This defendant is informed and believes that said Caldwell, in the event he could get the notes secured by this defendant, was to receive $50 for his trouble, and she so charges that to be true. For the purpose of keeping her relative from being disgraced and imprisoned and prosecuted, she signed said notes under the representations of said Caldwell, marshal of West End, that he (Caldwell) would give said Davis a job on the police force, and thereby enable him (Davis) to pay off his said indebtedness. She charges that these representations were willfull, fraudulent, and false; that it was not said Caldwell's purpose to give said Davis a position as policeman on the police force, but it was his sole purpose to get the matters in such shape that he would realize the sum of $50, as she has been informed, and as she believes, and so charges; that by these representations aforesaid she was induced to sign said notes, and but for said representations she would not have signed said notes. The purpose of procuring her is nature to the...