dissenting. 1. The statement of facts appearing before the majority opinion is substantially correct. The superior court did not err in sustaining the assignment of error in the petition for certiorari upon the allowance, on December 8, 1952, of the same' amendment to the suit which had been offered and allowed on March 13, 1951. It appears that the same objections were made to the proffered amendment on each occasion, *387but the superior court had ruled, on a previous certiorari, that the amendment should not have been allowed over the objections made to it. Upon the reoffer of this amendment, counsel for the defendant called the court’s attention to the prior ruling of the superior court, to which no exception had been taken, and contended that the ruling of the superior court had established the law of the case, insofar as the same amendment was concerned. This contention was well taken, and the judge of the city court erred in allowing the amendment when it was offered again on the second trial of the case.
2. The judge of the city court was apparently of the opinion that the evidence demanded a verdict for the plaintiff because the defendant, having admitted a prima facie case for the plaintiff, failed to sustain her defense of suretyship as a married woman by proof, and he accordingly directed a verdict for the plaintiff. The judge of the superior court took the contrary view, and ruled that, if the evidence on the next trial of the case should be substantially the same, a verdict should be directed for the defendant. I think that both of these views are erroneous, and that, upon the evidence as shown by the record, the case should have been submitted to the jury.
Code § 53-503 provides in part that “while the wife may contract, she may not bind her separate estate by any contract of suretyship nor by any assumption of the debts of her husband.” The controlling question for determination is whether the defendant was a surety on the note, to the knowledge of the bank at the time the loan was made, or whether she was the principal debtor. A copy of the note is not in the record, as a prima facie case in favor of the plaintiff was admitted, but the evidence shows that Mrs. Dye’s name appeared first on the note, her husband’s name was next, and then the name of Roy Richards, the plaintiff in this case. So far as the evidence shows, there were no words of description after any of their names, such as “principal” or “security,” but all three names appeared on the face of the note in the order just stated.
It was ruled as follows in Trammell v. Swift Fertilizer Works, 121 Ga. 778, 780 (49 S. E. 739): “Where two persons sign a note, apparently as joint principals, and there is nothing in the note to indicate that one is surety for the other, the presumption of law is that both are liable as joint principals. This is not, of course, *388a conclusive presumption, but may be rebutted by parol. Civil Code, § 2984 [Code 1933, § 103-306.] It is immaterial in what order the names may appear on the note, if in point of fact one of the makers is liable only as surety. No presumption of law or of fact can arise, in a case where both sign apparently as joint principals, that the person who signed last was surety only.”
The headnote opinion in Tuck v. Kellum, 36 Ga. App. 465 (137 S. E. 102), is as follows: “1. Where a married woman signs a note ostensibly as a maker jointly with her husband, when in fact she is a surety only, before she can establish the fact of her suretyship as against the payee of the note it must be made to appear, despite her apparent relationship as principal, that the payee, with knowledge of the facts which would constitute her a surety, contracted with her as a surety. Civil Code (1910), § 3556 [Code 1933, § 103-306], Hall v. Rogers, 114 Ga. 357 (40 S. E. 250). 2. In a suit against a married woman on a note which she signed ostensibly as a maker jointly with her husband, where she filed a plea of suretyship, and where the only evidence adduced in support of the plea was her own testimony that she received no money or other thing of value from the-plaintiff . . . such evidence, in the absence of any evidence tending to show that the payee of the note, at the time of its execution, knew that she received no money or other thing of value, and that therefore the payee contracted with her as a surety, was not sufficient to authorize a finding sustaining the plea, and the court did not err in directing a verdict for the plaintiff.” Trammell v. Swift Fertilizer Works, supra, is cited.
It is also true that, where a note is signed by the wife as principal and by her husband as surety, it is presumed that she executed the note as her own contract, to charge her separate property. Longley v. Bank of Parrott, 19 Ga. App. 701 (1) (92 S. E. 232); Jones v. Weichselbaum, 115 Ga. 369 (41 S. E. 615). This presumption may be rebutted by showing that the lender had notice that the wife was signing the note only as a surety, that the consideration was for the benefit of the husband alone, and that the wife received no part of it. Temples v. Equitable Mortgage Co., 100 Ga. 503 (28 S. E. 232); Bozeman v. Brock, 58 Ga. App. 816 (200 S. E. 182); Shepherd v. Life & Casualty Ins. Co., 71 Ga. App. 39 (29 S. E. 2d 917).
The evidence here showed that the defendant's husband *389brought to the defendant a cashier’s check, which was given by the lender for the note and was payable to Mrs. Dye, the defendant, to Jimmy Dye, and to Roy Richards; and Mrs. Dye endorsed the check and gave it back to her husband to use the proceeds of the check and the note to purchase a filling station, in which she apparently had no interest. But, as to whether or not the lender, to whose rights the plaintiff transferee succeeded, had knowledge of this fact and so contracted with the defendant wife as a surety, was a question of fact for the jury.- The only evidence in the present case tending to show such knowledge on the part of the lender was that of the admissions of a deceased cashier of the bank, as testified to by the defendant herself, and these admissions were to the effect that the cashier had let Jimmy Dye, the defendant’s husband, borrow the money to pay for the filling station which he was running, and that the cashier had let Dye have the money because Roy Richards’s name was on the note. From these admissions, the jury would have been authorized, but not required, to infer that the bank had knowledge that the defendant wife received no part of the consideration of the note, which was for the benefit of the husband alone. Furthermore, in view of the fact that these admissions were made to the defendant after the note became due and was in default, the weight of such admissions as evidence was a matter for the jury to determine. Code § 38-420.
Having paid the amount of the note to the ci’editor bank, the plaintiff as a surety was entitled to proceed against the principal debtor for the sum paid with interest. Code § 103-302. The plaintiff had an election to proceed as a holder and transferee of the note, in the place of the original payee and transferor and with all of the payee’s rights as well as the payee’s disabilities, or to bring suit, as a surety who had been called upon to pay and had paid the debt of the principal, on the implied obligation of the principal to reimburse the surety for tlie amounts so paid. Lamis v. Callianos, 57 Ga. App. 238 (194 S. E. 923); Jones v. Norton, 9 Ga. App. 333, 343 (71 S. E. 687); Campbell v. Rybert, 46 Ga. App. 461 (167 S. E. 924); Hull v. Myers, 90 Ga. 674, 681 (4) (16 S. E. 653).
The plaintiff here sued as the holder and transferee of the note and attached a copy of the note and transfer to his petition as an exhibit and made the same a part thereof. Counsel for both par*390ties state in their briefs in this court that this was a suit on the note, and it seems that the case was accordingly so tried in the trial court. The plaintiff admitted in his petition that the defendant had defaulted in the payment of the note according to its terms, and that the bank had exercised its right to declare the entire amount due, before the note was transferred to the plaintiff. When the bank transferred the note to the plaintiff, he acquired the title thereto, and, by taking the note after maturity, he was not a holder in due course (Code § 14-502); that is to say, the note in his hands under such circumstances was subject to any defense which the defendant might have made to a suit by the original payee and transferor. Code § 14-508. And notice of a defect in the note, or of a defense to it, on the part of the payee, is also notice to a transferee who takes the note after maturity. Georgia State Bank v. Peacock, 36 Ga. App. 159 (136 S. E. 171). If the lending bank had knowledge that the defendant, a married woman, was a surety on the note, the plaintiff, as a holder of the note by a transfer of the note after maturity, was chargeable with notice of this fact too. What the rights of the parties may be in a suit brought upon the surety’s right to reimbursement is not now for decision, as the case was not tried on that theory. I do not think that the doctrine of estoppel or the principle as to which of two innocent persons must suffer is applicable under the facts of this case. Neither do I think that the cases of Lingo v. Swicord, 150 Ark. 384 (234 S. W. 264), Andrews v. Meadow, 133 Ala. 442 (31 So. 971), and Van Brunt v. Potter & Co., supra, decided by the Superior Court of Pennsylvania and quoted from in the majority opinion, have any authoritative weight or bearing under the facts of the present case.
The superior court properly sustained the grounds of certiorari complaining of the direction of a verdict for the plaintiff by the city court, since there was an issue of fact as to whether or not the plaintiff's transferor, West Georgia National Bank, had contracted with the defendant married woman as a principal or as a surety; but the superior court erred in instructing the judge of the city court to direct a verdict for the defendant if the evidence should be substantially the same upon another trial of the case.
Judge Carlisle concurs in this dissent.