Payne v. Fourth National Bank

Jenkins, D. J. 1. “While, under the Civil Code (1910), §§ 3543 and 3544, a surety will be discharged by a novation changing the nature or terms of his contract without his consent, and therefore the acceptance by a payee bank, without the agreement or consent of the surety, of a [42] new note in renewal or payment of the original note -signed by the surety will discharge him from liability, such an acceptance by the payee bank, when induced by the actual fraud of the maker in presenting the renewal instrument with the signature of the surety forged thereon, and without knowledge or reasonable ground to suspect, on the part of the bank, that the signature was in fact a forgery, will not release the surety, where it appears that upon discovery of the fraud of the maker the bank promptly disaffirmed its previous acceptance of the renewal note, by regaining possession of the original note and suing thereon.” Biddy v. People’s Bank, 29 Ga. App. 580 (116 S. E. 222), and cit. In the instant case, while it does not appear that the plaintiff bank actually regained possession of the original note, it does appear that -the plaintiff, upon the defendant’s testifying in a suit previously brought upon the renewal note that he did not sign such renewal note, dismissed the previous action and brought suit upon the original note, the execution of which was admitted by the defendant, and upon which, it appears by the agreed statement of facts, there was a balance due in the amount of the verdict returned in favor of the plaintiff. Decided March 16, 1928. O. W. Foy, for plaintiff in error. Jones, Jones & Johnston, Homer Beeland, contra. 2. Although the bill of exceptions recites that the court, upon the agreed statement of facts, directed a verdict in favor of the plaintiff, no error is assigned thereon; the motion for a new trial presents the usual general grounds only, and the bill of exceptions assigns error only upon the overruling of that motion. The verdict is authorized by the evidence. Judgment affirmed. Stephens and Bell, JJ., concur.