Mathews v. Everett

¶1Omitting details, the substance of the special plea in its final shape as amended was, that the creditor, by certain representations and assurances relied upon by the surety, induced the latter to forbear the exercise of vigilance for his own protection, and to part with assets which afterwards came to his hands from the principal sufficient to discharge the debt, out of which assets, had the surety not been induced to consider himself as discharged from liability, he could and would have secured himself. The principal being or having become insolvent, and having removed from the State, the surety *476would sustain loss, should he be still bound upon the notes. According to the authorities, this defence seems to be available, and we think there was no error either in refusing to strike the plea or in the charge of the court complained of, the charge being in effect that if the plea was established by the evidence, the verdict of the jury should be for the defendant. High v. Cox, 55 Ga. 662; Whitaker v. Kirby, 54 Ga. 277; Bullard v. Ledbetter, 59 Ga. 109; Harris v. Brooks, 21 Pick. 195 ; notes to the same and other cases, 2 Am. L. C. 828, 329. Though a mere assurance to the surety that he is exposed to no further liability for the debt will not protect him from a subsequent change of purpose on the part of the creditor, yet if such assurance has resulted in producing positive injury, it will have that effect to the extent of such injury. This rule was recognized by the court in its charge to the jury, and the charge appears to us to be sound. Judgment affirmed.