Green v. Juhan

• Court: Georgia Supreme Court
• Writing for the Court: Jackson, Chief Justice
• Citation: Green v. Juhan, 66 Ga. 531 (Ga. 1881)
• Decision Date: 28 February 1881
• Parties: Green et al. vs. Juhan, surviving partner.

66 Ga. 531

Green et al. vs. Juhan, surviving partner.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Statute of limitations. New promise. Promissory notes. Principal and agent. Principal and surety. Before Judge lawson. Jones Superior Court. October Term, 1880.

Juhan, as surviving partner of Juhan & Clower,.brought suit to the October term, 1879, of Jones superior court, in the ordinary form of complaint, against William M. Green and John C. Green, on a note made by them, dated March 24th, 1873, and due one day after date, for $814.35, payable to Juhan & Clower, or bearer. The declaration was filed in the clerk's office of the superior court September 30th, 1879. The note sued on was indorsed with the following credits:

" Received on the within note, fifty dollars, from J. A. Green, February 9th, 1874."

"Received on the within note, one hundred dollars, May i8th, 1874."

" Received on within note, one hundred and seventy-seven dollars and fifty cents, February 1st, 1875."

None of said receipts were Subscribed by any one.

To this suit the defendant, William M. Green, filedno plea. The other defendant, John C. Green, filed the following pleas:

(1.) General issue. (2.) The statute of limitations. (3.) That he was only a surety on the note.

The last credit alone was relied upon as preventing the bar of the statute as to this defendant. The circumstances so relied on are detailed by Chiles, a witness for the plaintiff, as follows:

" I put the last credit on the note; some time in March, 1878, went out as agent of Juhan & Clower to see Mr. John C. Green about this note and an unpaid account due the store: talking about this note, John C. Green asked me if there was a credit for the purchase of a mule on the note; both defendants came to Clinton, and Colonel Hamilton remarked that Mr. Clower said that the price of the mule was $175.00; Wiliam M. Green said it was $177.00, and we agreed that the credit for the mule debt should bear date in 1875, and the credit of this much was ordered put there by both William M. Green and John C Green, and the understanding was that John C. Green was to give his note for his own open account. The credit was for a mule sold to Mr. Clower by William M. Green, in which John C. Green had an interest. The conversation was upon the time when the mule debt ought to be credited. I was acting for Juhan & Clower. I think John C. Green was looking over my shoulder when I entered the credit."

Chiles was corroborated by two other witnesses, while both of the Greens testified that John C. Green was a mere security on the note, and denied that he authorized the entry of the credit, but asserted that William M. Green caused it to be put there.

The jury found for the plaintiff. Defendants moved for a new trial on the following among other grounds:

(1). Because the verdict is contrary to law and the evidence.

(2). Because the court erred in refusing to give the following charge to the jury as requested: " If. the jurybelieve from the evidence that Samuel L. Chiles was the agent of Juhan & Clower, and that he put the credit on the note while acting as such agent, then it was a credit put there by the holder of the note and does not bind John C. Green."

The motion was overruled and defendants excepted.

Isaac Hardeman j Hill & Harris, for plaintiffs in error.

Richard Johnson: Harrison & Peeples, for defendant.

Jackson, Chief Justice.

This suit was brought on a promissory note against William M. and John C. Green. John C. filed a plea to the effect that he was only surety, and that the note as to him was barred by the statute of limitations. If he made no new promise in writing, or did anything equivalent thereto under the law, as the note had been due on its face more than six years, the statute barred the suit as to him, no matter what William M. Green had done to renew the promise. Code, §2938. The question then is, what did he, John C. Green, do to renew the vitality of the note, and is it sufficient, under the law, to bind him?

The testimony is conflicting, but there is testimony clearly to the point that he himself requested one Chiles to put a credit of $175.00 on the note; that Chiles went out to see him about this note and an unpaid account he owed the store; that he, John C, asked about a credit for a mule which ought to be on the note. It was not on it, and both the Greens ordered Chiles to put it on. John C, as well as William M., had an interest in the mule. Chiles went to see about the note and the unpaid account, acting for the holders of the note, and the conversation was about the proper time to make the credit bear date, and the date was agreed on as in 1875 and so put on thenote, and John C. Green then gave his own note for the account. The Greens denied these facts, but they were sworn to by Chiles and corroborated in essential parts by Hamilton and Greaves. There is evidence, then, that John C. Green directed Chiles to put the credit on the note for a mule, in which he had an interest, and agreed to the time it should bear date, and thereupon settled by another note an account overdue to the payees of the note sued on.

The question is, does this act of his bind him by a valid new promise, or what is equivalent thereto, in writing, so as to lift the bar of the statute and make the note valid against him? Section 2935 of the Code declares that "a payment entered upon a written evidence of a debt by the debtor, or any other written acknowledgement of the existing liability, is equivalent to a new promise to pay." This payment was entered on this note by Chiles, in the presence and by direction of John C. Green, as the value of a mule in which he had an interest, and which had previously been sold and delivered to the payees. If he had entered the credit on this written evidence of debt himself it would most clearly have bound him. What difference does it make that another, by his direction and in his presence, made the entry?'

The Code declares that " whatever one may do himself may be done by an agent, except...