Vason v. Beall

Bleckley, Judge.

1. Where the action is by the trustee of a minor, against the makers of a promissory note payable to a third person or bearer, one of the makers executing the note as principal, the other as surety, an account in favor of a partnership composed of the two defendants, and against the plaintiff, not as trustee, but as an individual, is not proper matter of set-off. The cause of action and the alleged set-off are not mutual debts.

2. A promise by a trustee that he will allow the amount of an account against himself personally, as a credit on a note held by him as trustee, is not obligatory upon the trust; and the breach of such a promise is no defense to an action upon the note, even though the account has become barred by the statute of limitations in consequence of delay to sue induced by the promise.

3. Eor the purpose of avoiding the statute of limitations, a promise to pay the debt in a particular way, as to allow it in a future settlement, requires a writing to establish it, the same as any other new promise. While a parol contract would not serve to prevent the bar of the statute from attaching, the breach of it after the bar had attached, might possibly be a cause of action — 55 Ga., 1. The forbearance to sue till too late to sue, might be treated as performance, *508or part performance, on one side, and thus any writing be dispensed with as evidence — Code, §1951. But if any action is maintainable, the trustee, as such, is not'the party to be sued.

4. There being before the jury two lines of evidence, one tending to show a mere conversation resulting in the gratuitous grant of solicited indulgence, the other tending to show an offer to pay the debt, failure or refusal of the creditor to accept payment, and certain stipulations for the retention and use of the money by the principal debtor, the court having charged the jury, first,’ that if the principal, with money enough in his possession to pay the whole amount of the note, offered to pay it, and the creditor neglected or refused to take the money, this would be such an act on the part of the creditor as would discharge the surety; and, secondly, that if, when the money was so offered, the creditor, instead of accepting it, induced the principal not to pay it, by promising that if he used it otherwise and sustained loss, he, the creditor, would make it all right, this, also, would be such an act on the part of the creditor as would discharge the surety: — the court did not err in adding,that if what occurred amounted only to a conversation touching payment, or touching the extension of the day of payment, and no such act was done by the creditor, the surety would not be discharged.

5. "When the court has charged the jury that certain facts, if true, would discharge the surety, it is unnecessary to repeat the same thing with variations; such as, “this was such a change of the contract as discharged the surety.”

6. After the court has charged that an offer to pay would be sufficient, if the person making the offer had money enough in his possession, there is no occasion to add that the money need not have been presented.

7. In order to discharge the principal debtor himself, on the ground that he invested Confederate money for the creditor, he must show that he invested it in the creditor’s name, or render some reason why he invested it otherwise. *509In 35 Ga., 216, there was a direction to hold until the creditor called, as well as clear authority to invest.

8. In administering the ordinance of 1865 for the adjustment of Confederate contracts, the jury may be charged, among other things, that it is for them, under the evidence and the instructions, to do between the parties what is right and equitable. This is equivalent to directing them to render a verdict upon the principles of equity.

9. An agreement “ to do what is right,” raises the question of what is right under all the circumstances, and where the ordinance of 1865 is applicable, this question is for consideration by the jury, and not for final decision by the court in the shape of instructions dictating the verdict.

10. "Whether or not the same creditor rejected Confederate money when offered by other debtors, was wholly irrelevant ; and his statement, in his evidence on the subject, was not admissible, nor was evidence admissible to contradict it.

11. The verdict being rendered under the ordinance of 1865, and no material error being found in the rulings of the court, and the evidence being conflicting, the judgment denying a new trial is affirmed.

Judgment affirmed.