Stokes v. Robertson , 143 Ga. 721 ( 1915 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The contract on which suit was brought was not merely one of indemnity, but contained a direct agreement on the part of the decedent to pay off and discharge the notes given by Robertson as fast as they should mature. A failure to pay one of the notes at maturity constituted a breach of the contract, and the plaintiff could bring suit thereon. Pie was not obliged to pay the note before bringing suit. If he was thus entitled to sue, for what amount could he bring his suit? In Thomas v. Richards, 124 Ga. 942 (53 S. E. 400), where one person entered into a contract with another, by which he assumed the payment of certain notes made by the latter, maturing at different dates, the failure to pay any single note was held to be a breach of the contract, and the other party to it was held to be entitled to recover. In Gage v. Lewis, 68 Ill. 604, it was said: “Where a bond is given, intended as a bond of indemnity, but containing a covenant that the obligor will pay certain debts for which the obligee is liable, and the obligor fails to perform, an action lies for the breach, and the obligee is entitled to recover the sums agreed to be paid, although it is not shown that he has been damnified, unless from the whole instrument it manifestly appears that its sole object was a covenant of indemnity.” Sec Alderman v. Rivenbark, 96 N. C. 134 (1 S. E. 644); 3 Elliott, Con. § 2205.

2. If an action be brought against an administrator as an individual, the pleadings may be amended by inserting his representative capacity, and making the necessary averments showing that the debt is chargeable to the estate. Civil Code (1910), § 5690; Poole v. Hines, 52 Ga. 500. There was no error in allowing the. amendment to the petition and to the process. The petition alleged that J. E. Stokes, as administrator of the decedent, was indebted to the plaintiff. The prayer was that process should issue against J. E. Stokes. The process referred to the defendant as “J. E. Stokes, administrator.”

3. There was no error in admitting in evidence the unpaid note. Its production showed its existence, and tended to show that it had not been paid.

4. There was also no error in rejecting evidence on behalf of the defendant, tending to show that Matthews, the original payee in the note, was claiming it, and that the defendant did not feel safe in paying it, where more than one party was claiming it, unless the note was presented for payment; and that Matthews was demanding payment of the note. The suit was not based upon the note itself, but upon the, agreement between Stokes, the decedent, and the plaintiff. If the case was a proper one for filing an equitable petition for interpleader, the defendant might have done so. But the mere fact that there was some difference as to who was the owner of the note was not a defense to the action upon the contract made by the defendant to pay it.

5. The defendant offered in evidence his returns as administrator, for the purpose of showing a distribution of the entire estate before the note was presented • for payment, and that more than twelve months had elapsed after his appointment before distribution. The returns were rejected from evidence. An administrator is allowed twelve months from the date of his qualification to ascertain the condition of the estate. Creditors failing to give notice within that time lose all right of equal participation with creditors of equal dignity to whom distribution is made before notice of such claim is brought to the administrator. Civil Code (1910), § 3997. See also McMillan v. Toombs, 79 Ga. 143 (4 S. E. 16); Lanier v. Huguley, 91 Ga. 791, 795 (18 S. E. 39). Here the defendant had actual notice of the note of Bobertson and the agreement by his intestate to pay it. He testified that he made inquiry in regard to it, and was informed by the plaintiff that the latter did not know where it was; that the defendant heard that Matthews had it, and wrote to Matthews, requesting that it be sent to a bank for inspection, but was informed that it belonged to the wife of Matthews, who had placed it in the hands of one Shivers as collateral security for a loan. The defendant further testified that he told the present plaintiff that he expected to sell the property, for a part of the purchase-price of which this note had been given, and that if Bobertson would find the note he would pay it; and also that Matthews told him that the note was not paid. Thus, according to his own evidence, the defendant knew of the existence of the note, and that it was not paid, though his intestate had contracted to pay it. He utilized, as a part of the assets of the estate, the land which his testator had purchased from the plaintiff. No question of priority of debts arises, but the administrator desires to escape from the obligation of the contract of his intestate because the note made by Bobertson to Matthews, which Stokes agreed with Bobertson to pay, was not presented for payment promptly to the administrator of Stokes, and he did not know where it was. His evidence showed no such state of facts as would have authorized the «jury to find in his favor. There was no error in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.