Opinion
40024.
DECIDED APRIL 2, 1963.
Action on contract. Chattooga Superior Court. Before Judge Fariss.
Archibald A. Farrar, for plaintiff in error.
Thomas J. Espy, Jr., contra.
The contract in this case being substantially the same as that considered in W. T. Rawleigh Co. v. Overstreet, 71 Ga. App. 873 ( 32 S.E.2d 574), we are bound by the ruling there that the contract was one of suretyship. The overruling of defendants' general demurrer is
Affirmed. Felton, C. J., and Russell, J., concur.
DECIDED APRIL 2, 1963.
Furst-McNess Company sued Roberts, Headrick and Allison for $194.11, the balance allegedly due from Roberts, as principal, when a certain "Sales Agreement" was terminated. As part of the same agreement, Headrick and Allison signed the following: "We, the undersigned sureties, have acquainted ourselves with the terms of the above agreement and, in consideration of the extension of credit to above named Dealer by Seller, agree to be bound thereby, and primarily, jointly, severally and unconditionally promise to pay Furst-McNess Company, the Seller, at its office in Freeport, Illinois, within one month from the termination of the above agreement, the balance due Seller for all products shipped by Seller to Dealer and charged to his account under the terms of the above agreement or any subsequent agreement between Dealer and Seller, without any proceedings being taken by Seller against Dealer. We waive all notices of acceptance and termination of this agreement, the above agreement and any subsequent agreement, delay or failure of Dealer to send reports, and all notice of Dealer's default. We agree that the written acknowledgment of his account by Dealer shall bind us and that we shall not be released from liability hereon by any extension of time, change in the conditions of payment for products shipped to Dealer on credit, or by Dealer's change of residence, location of his business, or his manner of conducting it. We further agree that any notice in any way affecting the rights of Seller must be delivered by registered mail to Seller at its office in Freeport, Illinois." Headrick and Allison demurred on the ground of misjoinder, contending they were guarantors and therefore had to be sued separately from Roberts.