Patteeson v. Gibson

• Decision Date: 13 July 1889
• Parties: Patteeson v. Gibson.
• Court: Georgia Supreme Court

10 S.E. 9

(81 Ga. 802)

Patteeson

v.Gibson.

Supreme Court of Georgia.

July 13, 1889.

Principal and Surety—Duress.

1. A bond executed under duress of the principal is void as to the surety also, if the surety acted without knowledge of the duress; and knowledge of the fact of imprisonment does not necessarily involve knowledge of its want of legality.

2. It was error to strike a plea setting up a material part of this defense; to-wit, want of knowledge.

(Syllabus by the Court)

Error from superior court, Bibb county; Gustin, Judge.

The following is the official report referred to in the opinion; On April 3, 1877, Mrs. Besore sued Besore and Patterson on a bond executed April 28, 1873, in which Besore was principal, and Patterson security, conditioned that, whereas Mrs. Besore had filed her libel for divorce and bill quia timet against Besore, under which he had been arrested, if he should pay such amount as might from time to time be ordered by the court as alimony and counsel fees to Mrs. Besore, then this bond to be void, etc. The plaintiff alleged that an order was afterwards passed for alimony and counsel fees, which remained of force over two years, when a total divorce was granted her; and that Besore had paid only the counsel fees and alimony for six months, leaving a balance still due her. Besore was not served. Patterson was served on April 6, 1877, and pleaded, among other things, that the bond was given by the principal under duress, he having been arrested by the sheriff, and confined for some time in jail, the sheriff demanding that he should give a bond before he should be released, and he gave the bond for the purpose of being relieved of imprisonment; but that the sheriff had no authority to arrest him, or confine him in jail, or demand of him a bond before releasing him, there being no order of court authorizing the sheriff to do so, and no allegation in the bill that would authorize the court to order the sheriff to arrest the principal, confine him in jail, or demand of him any bond of the character of that sued on. On May 9, 1877, the case came on for a hearing, and the defendant further pleaded, among other things, that the bond was given by Besore under duress, and defendant signed it as security for him, with no knowledge of the circumstances which required him to give a bond, or that he was under duress at the time, etc. On demurrer, the latter plea was stricken, as insufficient in law to constitute a defense, and this was assigned as error. Under the evidence introduced and the court's charge, the jury found in favor of the plaintiff. A motion was made by defendant for a new trial, on the ground, among others, that the charge contained the following instruction: "Whether Be-sore was under arrest or not, if Patterson voluntarily signed that bond, and he was under no arrest, and there was no illegal imprisonment as to him, —no threats made as to him, —he could not take advantage of it, and he must pay the bond if he signed it. * * * Look to see if Patterson signed it. If he did, whether Besore was under arrest or not, he not being here, Patterson cannot take advantage of it." The motion was overruled, and this also was assigned as error.

R. F. Lyon, Bacon & Rutherford, and R. W. Patterson, for plaintiff in error. J. H. Hall and Hardeman & Davis, for defendant in error.

Boynton, J.¹ The official report of this case shows that a number of exceptions were taken to the rulings made and charges given by the trial judge. The only one we regard as necessary for this court to pass on grows out of the plea and amended plea on the question of duress. The plaintiff in error (defendant in the court below) set up, as one of his defenses, that his principal was coerced into signing the bond sued on, by duress of illegal imprisonment. To this plea he offered an amendment, in which he alleged that the duress of his principal was unknown to him at the time he signed the bond as surety. This amendment was, on motion, disallowed or stricken by the court; and the court also held that the duress of the principal was not an available defense for the surety. Exceptions were taken to these rulings; and the question for our decision is, if the principal signed the obligation sought to be enforced under such duress as would release him from liability thereon, would the duress of the principal bean available defense for the surety, if he signed without knowledge of the duress? The answer to this question Is found in the head-note, which was dictated by the learned chief justice of this court. This answer is fully sustained by reason and authority; for "it is of the essence of a contract of suretyship that there should be someone liable as principal; and accordingly, when one party agrees to become responsible for another, the former incurs no obligation as surety, if no valid claim ever arises against the principal." Chitty, Cont. (11th Amer. Ed.) 738. "The contract of suretyship is that whereby one obligates himself to pay the debt of another, in consideration of credit, or indulgence, or other benefit to his principal; the principal remaining bound therefore." Code, § 2148. It is also a recognized doctrine of the law of surety that whatever discharges the principal also discharges the surety; but this rule does not apply where the surety binds himself, knowing he has no remedy...