Hirsch & Co. v. Meldrim

EvaNs, J. (After stating the facts.) Inasmuch as no consideration flowed to Meldrim, his liability, if any, would be that of a surety, and not that of a guarantor. Fields v. Willis, 123 Ga. 272. The contract of suretyship is always one for strict construction. Ordinarily an agreement to become responsible for an “advance” to be made to a third person is to be construed as presupposing that such third person shall receive in money or property the amount to be advanced. The mere release of a lien on property, so as to enable the principal to sell it for cash, is not such an “advance” as is contemplated by such a contract of suretyship. Upon its face, the writing declared on in this case indicates that the surety was to become responsible for a new liability of Fawcett to Hirsch & Company, and not for the payment of an existing debt, in whole or in part. Clearfy, by this written undertaking, Meldrim expressed a willingness to become bound for an actual advance of money or property, to be collected out of the proceeds of lumber to be shipped to Hirsch & Company by Fawcett, and therefore did not thereby authorize Fawcett to enter into an arrangement with Hirsch & Company whereby he would be enabled to deprive himself of property to which he then had the legal or equitable title, and to which Meldrim, as surety, would have the right to look for reimbursement in the event he was required to pay an advance made to his principal. The statement of facts shows that there was no advance in money or property, but only that a lien was cancelled so as to enable Fawcett to sell certain property belonging to him for a sum in excess of the lien, and to pay over to Hirsch & Company a portion of the proceeds in part satisfaction of an existing debt he owed to that Arm. Judgment affirmed. All the Justices concur.