Nance v. Winship Machine Co. , 94 Ga. 649 ( 1894 )

The suit was against Nance as guarantor on three promissory notes, dated September 7, 1885, and due December 20, 1885, October 20, and December 20, 1886. The declaration alleges that Smith, the maker of the notes, is insolvent and a non-resident of the State. Each of the notes stipulates that the title to a gin, feeder, condenser and press, for which it is given, shall remain in the plaintiff' until this note is paid in full. On each is the following, signed by defendant: “ Eor value received we guarantee the payment of this note, and waive protest and notice of protest.” Defendant’s special pleas were stricken -on motion, and he excepted. These pleas ai’e, in brief, as follows :

1. Defendant is released from liability; for that plaintiff retained the title to the machinery described, and by negligence and delay in prosecuting suit on the notes against the maker, the machinery was lost as security, the same having been sufficient to have paid said debt. Smith was solvent and amply able to pay the notes when they matured, and by reasonable diligence on the part of plaintiff' the money could have been made; but by negligent delay to prosecute suit for several years after the notes matured, Smith was allowed to sell out all of his property and leave the country. Plaintiff' has never sued or exhausted the maker, and has no right of action against this defendant till then. Plaintiff’ did not notify this defendant or call on him to settle the notes within a reasonable time after default of payment on the part of the maker.

2. Plaintiff' elected to rescind the trade under which the machinery was sold and the notes taken, by bringing an action of trover in Madison superior court against T. J. Hunt' who was at the time, in possession of the machinery, and on the trial a verdict was rendered against plaintiff’. The trover suit was an election of legal remedies by plaintiff, which bound him to that remedy alone, and released defendant from any liability.

A. G. McCurry and P. P. Proffitt, for plaintiff in error.

3. On or about the-day of December, 1885, defendant and plaintiff had a full and final settlement of all matters and things between them, which settlement included defendant’s liability on said notes sued on. After said settlement, defendant relying on it took no steps to protect himself out of Smith, as he might otherwise have done, and had no intimation that plaintiff claimed that he was still bound on the notes, until this suit was filed.

4. To protect their lien it was necessary to have the notes recorded as a mortgage, which plaintiff' failed to do, which failure exposed defendant to greater liability and increased his risk. In consequence of this failure, plaintiff’s lien on the property was lost, the same was sold to a bona fide purchaser, and could not be held bound for the payment of said debt; whereby defendant was injured, and was discharged from all liability to pay the notes.