Woolfolk v. Son

• Citation: 46 Ga. 422
• Court: Georgia Supreme Court
• Decision Date: 31 July 1872
• Parties: R. F. WOOLFOLK, plaintiff in error. v. I. C. PLANT & SON,defendants in error.

46 Ga. 422

R. F. WOOLFOLK, plaintiff in error. v. I. C. PLANT & SON, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

(Warner, Chief Justice, did not preside in this case.)

Principal and surety. Usury. Set-off. Indulgence. Accommodation drawer. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.

I. C. Plant & Son brought complaint against R. P. Woolfolk on the following draft:

"$1,841 71.

"Marks and numbers, "

J. J. B. 4 to 6 C. W. 2 to 3 J. & H. 21 to 24 J. A. E. 23 to 27 W. S. K. 16 to 20

Macon, Ga., November 21st, 1868. Without grace, fifteen days after date, pay to the order of I. C. Plant & Son, eighteen hundred and forty-one dollars and seventy-one cents, for value received being an advance on twenty bags of cotton, marked and numbered as per margin, which are conveyed to you, which cotton sell before the maturity of this draft and apply the proceeds specially to the payment thereof; if not sufficient, the balance will be paid by you, and charge to account of Yours, respectfully,

(Signed) R. F. Woolfolk.

"To Messrs. Woolfolk, Walker & Co., Macon, Ga." *Written across face of draft, "Woolfolk, Walker Co." Credit. —Received of J. H. Woolfolk five hundred dollars on this draft in part payment, and the receipt attached hereto marked W. S. K. is to be considered as returned to him to the extent ot the above money so paid. This February 16th, 1869.

(Signed) Lanier & Anderson, Attorneys, etc.

The defendant pleaded, 1st, The general issue; 2d, That his signature was procured to said draft through the misrepresentation of I. C. Plant, one of the plaintiffs; 3d, That the firm of Woolfolk, Walker & Company has paid to plaintiffs large amounts of usurious interest, that defendant is only a surety, that said firm is insolvent, that therefore said usurious interest constitutes an equitable set-off to said claim; 4th, That plaintiffs, after said draft became due, for a valuable consideration, extended the time of payment to Messrs. Woolfolk, Walker & Company, thereby releasing defendant. The jury returned a verdict for the plaintiffs for the sum of $1,353 27, with interest from February 2d, 1869.

The defendant moved for a new trial upon the following grounds, to-wit:

1st. Because the Court erred in charging the jury that "the instrument sued on was a bill of exchange drawn by R. F. Woolfolk upon Woolfolk, Walker & Company, and that if the acceptors failed to pay it when due, the drawer was bound to do so."

2d. "That if usurious interest had been paid by said Woolfolk, Walker & Company to the plaintiffs upon other transactions between them, R. F. Woolfolk could not set it up as a defenseas to this action, or plead it as a set-off to the draft sued on, though it was proved that Woolfolk, Walker & Company were insolvent."

3d. Because the Court erred in refusing to charge, as requested bydefendant, that "if plaintiffs had given to Woolfolk, Waiker & Company time upon the draft sued on *without the consent of R. F. Woolfolk, who was only an accommodation drawer, he was relieved from liability thereby, " and in giving such charge with the qualification, "that the time given must be a specified time, during which plaintiffs could not sue."

4th. Because the Court erred in refusing to charge the jury, as requested by defendant, that "if plaintiffs sued out a possessory warrant for the cotton, under which one of the firm of Woolfolk, Walker & Company was arrested, and such warrant was dismissed without the consent of R. F. Woolfolk, he being an accommodation drawer, he was relieved from liability thereby, " and in giving such charge with the qualification, "that to relieve such accommodation drawer, it must be made to appear that the cotton had been seized under the warrant before its dismissal."

It was admitted that Woolfolk, Walker & Company had been declared bankrupts.

Whittle & Gustin, for plaintiff in error, submitted the following brief: 1. The charge of the Court, that "the instrument sued on was a bill of exchange, drawn by R. F. Woolfolk, and accepted by Woolfolk, Walker & Company, and if the acceptors failed to pay it when due, the drawer was bound to do so, " is erroneous, and the verdict of the jury is contrary to the law and evidence. Plant & Son were bound to use every means in their power to secure the application of the cotton to the payment of the draft, Woolfolk having become liable, at least to some extent, upon the representations made by them, and being only a surety under section 2123 of the Code: Matheson v. Jones, 30 Ga., 306. Dismissing the possessory warrant instead of using the means pointed out by law to force the production of the cotton, and extending the time of payment, even indefinitely, were such acts as increased the risk of the surety, and therefore discharged him: Code, section 2126; Toomer v. Dickinson, 37 Ga., 428.

The usurious interest...