Brock Candy Co. v. Craton , 33 Ga. App. 690 ( 1925 )

Broyles, C. J.

(After setting forth the foregoing stated facts.) In our opinion the petition was not subject to any ground of the demurrer interposed. The extension of credit by the plaintiff to Austin in excess-of the sum of $500 did not release Craton. “If one assumes to pay a definite amount of the indebtedness of another, it is none of his concern whether the debt thus assumed is greater or less than the actual indebtedness.” Oglesby v. South Georgia Grocery Co., 18 Ga. App. 402 (5) (89 S. E. 436). See also Scarratt v. Cook Brewing Co., 117 Ga. 181 (1) (43 S. E. 413).

AYe think the contract of Craton with the plaintiff was one of suretyship and not of guaranty, and therefore the action could be maintained against both defendants jointly. There was no benefit flowing to Craton, and he was not primarily, but only secondarily, liable to the plaintiff. A contract of suretyship “differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor.” Civil Code (1910), § 3538. “A fundamental distinction between a guaranty and suretyship is that in a contract of guaranty the person obligating himself to pay the debt of another is primarily, and not merely secondarily, liable for its payment.” Watkins Medical Co. v. Marbach, 20 Ga. App. 691 (1 b) (93 S. E. 270). See also Wright v. Shorter, 56 Ga. 72, 77.

AYe think also that the contract of suretyship did not limit the plaintiff to give credit for only $500 to Austin, although it did limit the surety’s liability to that amount. “AYliere an absolute promise is made to become responsible for a certain amount, with no limitation as to time, and there is nothing in the circumstances surrounding the execution of the contract to evince a contrary intention, it will be presumed that the promise was to continue until revoked, and the promisor will bo held liable to the cxteiit of his guaranty notwithstanding the principal may have, during the existence of the contract, contracted debts to an amount equal to or greater than the sum named in the guaranty.” Manry v. Waxelbaum Co., 108 Ga. 14, 21 (33 S. E. 701). There was no merit in any ground of the demurrer, and the court erred in sustaining the demurrer and in dismissing the case as to J. L. Craton.

Judgment reversed.

Lulce aúd Bloodworth, JJ., concur.