Hunter v. Robertson

• Decision Date: 31 January 1860
• Citation: 30 Ga. 479
• Parties: HUNTER, indorser. v. ROBERTSON AND ROBERTSON.
• Court: Georgia Supreme Court

30 Ga. 479

HUNTER, indorser. v. ROBERTSON AND ROBERTSON.

Supreme Court of the State of Georgia

JANUARY TERM, 1860.

Certiorari. Tried before Judge Fleming, in Chatham on 14th May, 1859.

Henry Williams, for plaintiff in error.

Ward, Jackson & Jones, for defendant in error.

By the Court.—Lyon, J., delivering the opinion.

George Robertson and another, as the executors of William Robertson, brought suit in the City Court of Savannah against James Hunter, as the indorser of a promissory note, of which the following is a copy:

"Savannah, January 13, 1851.

"$200.00.

"On the first day of January, 1852, I promise to pay James Hunter, or order, two hundred dollars, for value received.

(Signed) "JOHN C. HUNTER.

"Indorsed, James Hunter."

On the 5th January, 1853, the maker paid twenty dollars on account of interest on said note, without the knowledge of the indorser, James Hunter, who had indorsed the note for the accommodation of John C. Hunter. The suit was commenced on the 5th of April, 1858. To that suit the defendant plead the Statute of Limitations as a defense. The Judge of the City Court, on the trial of the case, held that the payment made by the maker on the 5th January, 1853, took the case out of the statute, not only as against the maker, but as to the defendant, the indorser; that that payment, as an acknowledgment of the subsistence of the debt at thattime, constituted a new point from which the statute began to run, and that the statutory bar would not attach until six years from that time. This judgment having been referred to the decision of the Superior Court of Chatham, as by certiorari, was affirmed by that Court, to which the defendant excepted.

Is it true that a payment by a maker, and before the statutory bar has attached to the debt, is sufficient to take the case out of the statute, as to the indorser, and constitute a new starting point for the statute, as to him? That it is true as to a joint obligor, has been well settled by this Court. Cox vs. Bailey, 9 Ga, 467. In the latter case, the correctness of the principle, even as to joint contractors and partners, was gravely doubted by this Court; but as the question was no longer open, but an adjudicated one, the principle was adhered to, although a contrary holding would have been the better policy. The reason for the principle is, that, as between joint contractors or obligors and partners, there is a community of interest in that particular business, that what affects one affects the whole; that the act of one is the act of all; that is, he is, in that matter, considered as the agent of the other partners. But can that be true as to indorsers? We think not. The contract of the indorser is a new and independent one of that of the maker: Story on Promissory Notes, sec. 135. While there is, to a certain extent, a privity between them, there is not a community of interest, in all respects. The indorser is bound to the extent of his contract, and according to its terms; that which will discharge an indorser will not always discharge a joint obligor. The contract of the indorser, under our statute, is as surety for the maker; is accessory to his contract, and coextensive with it, but that is the contract simply to which the indorser accedes, if there be a new contract, a new undertaking, or any change in the old one, the liability of the security, or, as in this case, the indorser is gone; not so with the joint obligor, his liability continues until the debt is paid. If there be a change in the contract, he is supposed to assent to it, because of his common interest in the consideration and advantages of...