Syllabus by the Court.
A
"contract of suretyship" is one whereby one party
obligates himself to pay the debt of another in consideration
of credit or indulgence or other benefit given to his
principal, the latter remaining bound therefor. In a suit
against certain persons as sureties, where it appears from
the petition that the defendants had requested of the
creditor an indulgence to the principal, such as a certain
and definite extension of the time in which he might pay the
debt, the request being embodied in a contract tendered by
the sureties for the creditor's acceptance, and where it
further appears that the contract was thereupon accepted by
him, a promise on his part to grant the indulgence was
implied. An implied promise may be a sufficient consideration
for an express promise. In the present action against alleged
sureties, the contract relied on was not lacking in mutuality
nor without consideration.
In a
suit upon an obligation which is subject to no condition
precedent, but which might be defeated by the happening of a
condition subsequent, it is not necessary for the plaintiff
to allege that the condition has not happened. In such a case
the burden of setting up the condition would devolve upon the
defendant. (a) Applying these rulings the court did not err
in overruling the demurrers to the petition.
The
answer, having in effect admitted facts showing that the
contract had for a consideration the implied promise of the
plaintiff to grant the indulgence as requested, was fatally
defective as a plea of want of consideration, the sole
defense relied on, and was properly stricken.
Error
from Superior Court, Muscogee County; Geo. P. Munro, Judge.
Suit by
Samuel Weil against A. S. Loewenherz and others. Judgment for
plaintiff, and the defendants bring error. Affirmed.
Samuel
Weil brought suit against Leo Loewenherz, Albert S
Loewenherz, and Howard L. Loewenherz, all residents of
Muscogee county, Georgia, to recover the principal, together
with interest from their date, upon the last 81 of a series
of 106 notes, the first one of the notes sued on, to wit, No
26, being due and payable on February 1, 1924, and the others
maturing respectively one on the first day of each month
thereafter through and including October 1, 1930. The
plaintiff sought to show, however, that, by the terms of a
separate writing, the maturity of all of the notes had been
accelerated, and that they were due at the filing of the
suit. For this purpose the petition alleged:
"(3) At the time of the delivery of said notes to
petitioner, defendants also executed and delivered to
petitioner 25 other notes numbered from 1 to 25, for $100
each, due monthly prior to February 1, 1924, which
constituted, together with the aforesaid 81 notes, a series
of 106 notes, and, simultaneously with the delivery of said
entire series of notes, and as part and parcel of the
consideration of the same, and constituting with the
execution and delivery of said notes part of the same
transaction, said defendants executed and delivered to the
petitioner a written contract bearing date the 6th day of
December, 1921, a true and correct copy of which is hereto
attached, marked Exhibit B, and made a part of this petition.
(4) Defendants failed and refused to pay said note No. 26
due February 1, 1924, and said note No. 27, due March 1
1924, and said note No. 28, due April 1, 1924, and said note
No. 29, due May 1, 1924, and said note No. 30, due June 1,
1924, and said note No. 31, due July 1, 1924, and petitioner
has exercised his option provided for in said contract, a
copy of which is hereto attached, marked Exhibit B. of
declaring due and payable each and all of said 81 unpaid
notes, and has demanded payment of the same of the
defendants, which payment each and all of the defendants
wholly failed and refused to make."
The
following is a copy of the exhibit:
"This agreement made this 6th day of December 1921,
between Samuel Weil of the Borough of Manhattan, City of New
York, hereinafter designated as the party of the first part,
and Leo Loewenherz, Albert S. Loewenherz, and Howard L.
Loewenherz, of Columbus, Ga., hereinafter designated as the
parties of the second part, witnesseth: Whereas, on the 26th
day of September, 1921, in the Supreme Court of the state of
New York, county of New York, the party of the first part
obtained against Leo Loewenherz, one of the parties of the
second part, a judgment for the sum of $10,705.38; and
Whereas, said sum of $10,705.38 with interest thereon from
September 26, 1921, at the rate of 6 per cent. per annum is
now due and owing and unpaid on said judgment; and Whereas,
the parties of the second part are desirous of paying said
judgment in monthly installments of $100 each, with the
interest on each installment; Now therefore, in consideration
of the sum of $1 by each of the
parties hereto to the other in hand paid and other valuable
consideration, and in order to induce the party of the first
part not to commence proceedings for the collection of said
judgment, and further, in order to induce the party of the
first part to accept a series of notes, aggregating in amount
the sum of $10,705.38, with interest from September 26, 1921,
to the date of the making of said notes, each of said series
of notes to be for the sum of $100 and interest, first of
said series to be payable one month from the date of said
note, and the remainder of said series to be paid one each
and every month thereafter until the entire sum of
$10,705.38, with interest to the date of the making of said
notes, is fully paid, and all of said series of notes to be
signed and executed by the parties of the second part hereto,
it is agreed by and between the parties hereto as follows:
That, in the event of the failure of the parties of the
second part to pay any of said series of notes at the time
when and the place where the same is payable, that then and
in that event the entire series of notes remaining unpaid at
the time of such default shall immediately become due and
payable at the option of the party of the first part hereto,
anything herein or in said notes contained to the contrary
notwithstanding, and regardless of the dates expressed in
said series of notes for the payment thereof.
In witness whereof, the parties hereto have hereunto set
their hands and seals the day and year first above written.
L.
Loewenherz. [L. S.]
Howard
L. Loewenherz. [L. S.]
Albert
S. Loewenherz. [L. S.]"
Leo
Loewenherz made no appearance. The other two defendants
demurred to the petition, as follows:
"(1) Defendants demur generally to said petition upon
the ground that the allegations therein show no cause of
action against these defendants and no cause of action is set
forth in said petition.
(2) Defendants demur generally to said petition upon the
ground that said petition and the agreement thereto annexed,
marked Exhibit B and made part thereof, show that the notes
sued on were given in furtherance of the desire to pay a
pre-existing judgment debt of Leo Loewenherz, and are without
consideration, nudum pactum and void, and no cause of action
is set forth in said petition.
(3) Defendants demur specially to the following language
contained in paragraph 3 of said petition, 'and
simultaneously with the delivery of said entire series of
notes, and as part and parcel of the consideration of the
same, and constituting with the execution and delivery of
said notes, part of the same transaction,' because said
agreement shows that it was executed on December 6, 1921, and
said agreement and said notes show that said notes were
executed on November 26, 1921, and said allegation is
contradictory."
Subject
to the demurrer the defendants answered, admitting the
execution of the notes and their default in the payment of
the note No. 26, but denying liability upon any of the notes
"in any amount whatever, for the reasons hereinafter
more fully set forth." The answer continued as follows:
"(3) Defendants admit the execution and delivery of said
agreement described in paragraph 3 of said petition, but deny
that said agreement was executed and delivered as part and
parcel of the consideration of said series of notes.
(4) Defendants admit they failed and refused to pay said
notes as alleged in paragraph 4 of said petition, for the
reason that said notes are without consideration in so far as
they apply to these defendants, and are totally void as
hereinafter set forth, and defendants are not indebted
thereon to plaintiff in any amount whatever.
(5) For further answer these defendants say that, on the date
and at the time said notes sued on by plaintiff were executed
and delivered by these defendants, plaintiff had obtained in
the Supreme Court of the state of New York, county of New
York, a judgment against Leo Loewenherz for the sum of
$10,705.38, which said judgment fixed the liability of said
Leo Loewenherz to plaintiff for benefits theretofore received
by said Leo Loewenherz individually, and on the date said
notes sued on by plaintiff were executed by these defendants
said judgment constituted a preexisting indebtedness of said
Leo Loewenherz to plaintiff.
Defendants further say that, on the date of the rendition of
said judgment, and on the date of the execution and delivery
of said notes by these defendants, said Leo Loewenherz was
insolvent and owned no property of any kind, and has not
since acquired any property out of which said judgment could
be satisfied, but the said Leo Loewenherz, as set forth in
the certain agreement annexed to plaintiff's petition,
and marked Exhibit B, was desirous of paying said judgment,
and the only manner in which he
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