Shank v. Washington Exchange Bank

LüMPKIN, J. (After stating the facts.) Where a suit is brought against several defendants, some of whom are in fact sureties for another, if this does not appear on the face of.the contract it may be proved by parol, either before or after judgment, the creditor not being delayed in his remedy by such collateral issue between the principal and the surety. Civil Code, §2984; Whitley v. Hudson, 114 Ga. 668; Camp v. Simmons, 62 Ga. 85; Cauthen v. Central Georgia Bank, 69 Ga. 733. This rule applies where the relation of principal and surety in reality exists, although it does not appear on the face of the contract. In the case now under consideration the defendants who filed this plea did not allege that they were in fact sureties for Holland or signed as such, or that the relation of principal and sureties was ever contemplated between them. They were debtors of Holland, not sureties for him. Louisa J. Shank signed as surety for the other two, not for Holland. If they have any' claim against Holland, it is not because they are sureties for him, but because they gave him a note for certain worthless machinery and are subject to judgment because the note was transferred to an innocent purchaser for value without notice. Want of consideration or failure of consideration for a promissory note does not create the relation of principal and surety between the makers of the note and the payee, although it may have been indorsed to an innocent purchaser, and the makers may be unable to assert their defense against the holder. The plea was properly stricken. Judgment affirmed. All the Justices concur.