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ering no more straw; but the plaintiff here expressly refuses
to pay for the loads as delivered; the defendant, therefore is
not liable for ceasing to perform his part of the contract.”
He further adds: “Whitman, J., certainly, and Crompton, J.,
by inference, in Jonasshon v. Young, 4 Best & S., at page 299,
both uphold that case upon the principle on which I rely. The
principle to be applied in these cases is, whether the non-
delivery or the nonpayment amounts to an abandonment of the
contract or refusal to perform it on the part of the person so
making default.” And Denman, J., in the same case, said:
“I am of opinion, upon the authority of Withers v. Reynolds,
2 Barn. & Adol. 882, that the ruling was quite right.
That case did not decide expressly that a mere failure of the
single payment might not be evidence of a refusal to perform
the contract. But, in the words of Patterson, J., the conduct of
the plaintiff, coupled with the nonpayment, amounted to an ex-
press refusal to perform the contract on his part.” And in an
earlier part of the same case, referring to Withers v. Reynolds,
2 Barn & Adol. 882, he said: “There the plaintiff did acts and
said things which amounted to a declaration on his part that
he did not mean to perform the contract.” This last state-
ment applies fittingly to the conduct of the buyer in the case
at bar and quite clearly expresses the meaning and effect of said
letter of June 29th.
The principle of Freeth v. Burr, L. R. 9 C. P. 208, is a
correct statement of the law for guidance in determining the
character of the refusal to perform, and its effect upon the
contract where the intention to be gathered from the acts and
conduct of the party in default is not manifest; and Withers v.
Reynolds, 2 Barn. & Adol. 882, correctly states the law where
the refusal to perform is coupled with conduct which amounts to
an express refusal to perform the contract upon the agreed
terms. The two cases are not in conflict as thus distinguished,
and when carefully considered they must be so distinguished.
We are not unmindful of the fact that it has been contended
that the admitted breach in this case was no more than a refusal
to pay for a single installment of one hundred tons, and that it
was 45° unlike that in Withers v. Reynolds, 2 Barn. & Adol.
882—not prospective in its character. In our opinion, it does
not change the effect of the refusal whether it operates pros.
pectively or not, if, in fact, it is coupled with a declaration of
intention, amounting to an express refusal, not to be bound by
the agreed terms of the contract.

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The refusal to pay accompanied with such an announcement

was the controlling element in Withers v. Reynolds, 2 Barn. & Adol. 882, such as we regard it in this case.

And lastly, we may say that the buyer has his remedy for compensation in damages for a default as well as the seller, and, each enjoying this right on equal terms, neither may seek special advantage to the detriment, perhaps, of the other by deliberately imposing new terms upon the contract.

The court below rightly found as conclusions of law, under the facts of this case, that the buyer repudiated the said contract, entitling the sellers to rescind it, and the judgment below is affirmed.

The Entirety of Contracts of Sale by installments is considered in the note to Gill v. Benjamin, 54 Am. Rep. 624-630. In Gerli v. Poidebard Silk Mfg. Co., 57 N. J. L. 432, 51 Am. St. Rep. 611, 31 Atl. 401, the doctrine is laid down that when the seller has agreed to deliver the goods sold in installments, and the buyer has agreed to Pay the price in installments, which are proportioned to, and payable on, the delivery of each installment of goods, their default by either party with reference to any installment will not ordinarily entitle the other party to abrogate the contract.

Am. St. Rep., Vol. 94–7

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NEGOTIABLE INSTRUMENTS –Joint and Several Note.A note written, “I promise to pay,” and signed by one person at the bottom and by another on the back thereof, is joint and several, and the person signing on the back is according to the facts, liable either as a joint maker or as a surety, but not as an indorser. (p. 98.)

JUDGMENTS — Joint and Several Liability.—An unsatisfied judgment against one of two joint and several makers of a note is no bar to an action thereon against the other. (p. 99.)

R. B. Blackburn, for the plaintiff in error.
J. M. McAfee, for the defendant in error.

* COBB, J. Huff brought suit in a justice's court against Booth on a promissory note, and the case was carried by appeal to the superior court. The note sued on was signed by H. F. Harden, and begins with the statement, “Ninety days after date I promise to pay Walter Huff, or order, seventy dollars.” On the back of the note the name of “S. Booth” was written. The defendant filed a plea in which he alleged that at a previous term of the court the plaintiff had brought suit on the note against Harden and recovered a judgment against him for the full amount of the note, and this judgment is a bar to the present suit. Upon motion this plea of the defendant was stricken and judgment entered in favor of the plaintiff. To the order striking the plea the defendant excepted.

By signing his name on the back of the note sued on the defendant became liable thereon either as a joint maker or as a

surety, but not as an indorser: Benson v. Dublin Warehouse Co., 99 Ga. 303, 25 S. E. 645 See, also, Quin v. Sterne, 26 Ga. 223, 71 Am. Dec. 204. If he was a joint maker with Harden, they were under the contract jointly and severally bound to pay. If he was only a surety, they were bound in like manner. A note signed by two persons, which is written, “I promise,” is a joint and several note. A note signed A B, principal; C D, surety, and written, “I promise,” is also joint and several: 1 Daniel on Negotiable Instruments, 4th ed., sec. 94, and cases cited; Story on Promissory Notes, secs. 57, 58. As the contract contained in the note sued on was a joint and several promise by Harden and Booth, a * judgment against Harden which has not been satisfied would not be a bar to a suit against Booth: Story on Bills, secs. 430-432. The plea set up no defense, and was properly stricken. Judgment affirmed.

All the justices concurring, except Lewis, J., absent.

One Who Indorses a Note before its delivery is generally held to be a joint maker or surety: See the monographic note to Cadwallader v. Hirshfeld, 72 Am. Rep. 676; Merchants' Trust etc. Co. v. Jones, 95 Me. 335, 85 Am. St. Rep. 412, 50 Atl. 48; Dow Law Bank v. Godfrey, 126 Mich. 521, 86 Am. St. Rep. 559, 85 N. W. 1075. In Davis v. Bly, 164 N. Y. 527, 79 Am. St. Rep. 670, 58 N. E. 648, he is held liable as first indorser.

An Unsatisfied Judgment against one of two persons jointly liable is not a bar to an action against the other: See the monographic note to Abb v. Northern Pac. Ry. Co., 92 Am. St. Rep. 885-888; Heckemann v. Young, 134 N. Y. 170, 30 Am. St. Rep. 609, 31 N. E. 513.


APPELLATE PRACTICE–New Trial.-A judgment granting a first new trial must be affirmed on appeal if the verdict rendered was not demanded under the law and facts of the case, and in such ease the appellate court will decide such questions raised in a crossbin of exceptions, as relate to matters which will likely arise at the next trial. (p. 101.)

CourTs—Jury Trial.-The judge of the city court of Americus has authority to try without a jury all civil cases within his jurisdiction in which no demand for a jury trial is made at the first term, but he is not required to do this if in his discretion a jury trial is to be preferred. (p. 101.)

INSURANCE–Accident—Hernia.-lf an insurance company seeks to avoid liability under an accident policy providing that the insurance shall not cover accident or injury resulting wholly or partly, directly or indirectly, from hernia, and the insured had at the time of the injury for which recovery is sought a “reducible hernia,” the insurer must show after prima facie proof that an injury to the insured resulted from an accident within the meaning of the policy, that the existence of such hernia at the time of the accident substantially contributed wholly or partly, directly or indirectly in bringing about the injury. If such hernia merely aggravated the consequences of the accident, the insured is entitled to recover. (p. 103.) INSURANCE–Accident—Construction of Policy.—In construing a policy of accident insurance, that interpretation is to be placed upon the words of the policy which is most favorable to the insured, and all ambiguities and doubts are to be resolved in favor of a liability against the insurer, especially when the insured has established a prima facie right to recover under the terms of the policy, and the insurer is seeking to defeat such a liability by showing that the act complained of is within one of the exceptions reserved in the contract as a defense to an action on the policy. (p. 103.) INSURANCE–Accident—Waiver by Agent–Estoppel.—If an accident insurance policy contains a stipulation that, “no agent has power to waive any condition in this policy,” the delivery of the policy to the insured puts him on notice that a waiver of a condition in the policy by the agent obtaining the insurance is not binding on the insurer, and he is estopped to set it up. (p. 108.) INSURANCE–Accident—Proof of Disability.—A refusal on the part of the insurer to pay a claim for total disability under an accident insurance policy, or a denial of liability for such claim, does uot have the effect of relieving the insured from making the proof necessary under the policy to establish an additional claim on his part for a partial disability. (p. 109.)

J. H. Lumpkin, for the plaintiff.

E. A. Hawkins, for the defendant.

* COBB, J. Thornton sued the insurance company, in

the city court of Americus, upon a policy of accident insurance, and recovered a verdict. The defendant filed a motion for a new trial, which was granted, the judge stating in the order sustaining the motion that a new trial was granted for the reason that, under the contract contained in the policy and the evidence produced at the trial, he did not think the plaintiff was entitled to recover, and that a new trial was granted for this reason alone. To this judgment Thornton excepted, and the insurance company by a cross-bill of exceptions assigns error upon various rulings made during the progress of the case, and upon the refusal of the court to grant a new trial upon all of the grounds contained in the motion therefor.

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