1. Properly construed, the contract, under the terms of which the plaintiff seeks to hold the defendant liable, is one of guaranty.

2. A discharge in bankruptcy of a principal debtor from his liability under the terms of a contract does not generally operate to discharge his surety or guarantor.

3. "Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it."

4. Where, in an action against a guarantor who is secondarily liable on his principal obligation, the evidence fails to show that the principal debtor is insolvent or cannot be made to respond to a judgment against him, a verdict in favor of the plaintiff and against the guarantor is not authorized by the evidence.

5. Assignments of error as to matters which are not likely to recur upon another trial will not be considered.

DECIDED MAY 11, 1956.

On June 4, 1954, Swift Company brought an action against W. C. Bradley to collect an unpaid balance of $1,406.73, together with interest and attorney fees, due on an account with William H. Moreland, Jr.

The material allegations of the petition are substantially as follows: On July 1, 1951, Moreland signed a written agreement by the terms of which he was to become the agent of the plaintiff for the sale of its products. This agreement was to become effective upon its confirmation by the plaintiff's district office in Atlanta, Georgia. On September 6, 1951, the defendant, Bradley, executed a written undertaking, contained on the reverse side of the agreement between Moreland and the plaintiff, by the terms of which Bradley jointly and severally promised and guaranteed the unconditional payment at maturity of all accounts, receivables, acceptances, notes, and all other obligations of any nature and kind arising out of and in connection with the agreement signed by Moreland. On September 11, 1951, the plaintiff's district office confirmed Moreland's agreement which contained Bradley's agreement on the reverse side. Thereafter, the plaintiff furnished Moreland with the plant foods referred to in the contract and Moreland became indebted to the plaintiff in the sum stated above. The material terms of the contract between Moreland and the plaintiff, and the undertaking of the defendant Bradley, which were attached to and made a part of the petition, are as follows: "July 31, 1951. Swift Company, a corporation, hereinafter designated as principal, hereby appoints Wm. H. Moreland, Jr., hereinafter designated as agent, its agent for the sale, on commission and for its account, of such quantities and brands of plant food as may be mutually agreed upon from time to time on the following terms and subject to the conditions hereinafter mentioned, and the said agent hereby accepts the appointment and agrees to comply with all the terms and to perform all of the conditions hereof: . . . 2. Duration: This contract shall remain in effect until terminated for any reason, at any time, by either party upon giving written notice, but only upon written notice. If contract is terminated, the principal shall have the right to withhold further deliveries whether on unfinished or new business, and all accounts at the option of the principal, may become due and payable at once. Upon termination all new business shall cease, but the terms of this contract shall govern the closing of all unfinished business. The termination of this agency for any reason shall be without prejudice to the rights of the principal against the agent.

"3. Selling: Agent agrees to seek business diligently and to create a demand for principal's products. Agent further agrees, in the event any portion of said goods remain unsold, to deliver such unsold balance on demand by principal to agent's nearest railroad station in good shipable condition, subject to order of principal, free from expense to principal, and agent further agrees to prepay transportation charges thereon to the point of original shipment.

"4. Prices and Terms: Principal shall furnish agent price lists in writing from time to time which shall be a part of this contract as effectively as if written herein. Said price lists shall state prices, terms, commissions, accounting dates, and other conditions governing the sale of plant foods not otherwise provided for herein. Each price list and any or all of its provisions are subject to change from time to time upon written notice from the principal. Every sale made by the agent shall be made subject to all the provisions of this contract including the price list effective on date of such sale. Orders taken by agent from customers on which plant foods are not delivered immediately to the customer will, until the plant foods have actually been delivered to the customer, be subject to change in prices as aforesaid, unless such customers' orders have been therefore submitted by agent and approved by principal.

"5. Commissions: (a) Principal shall pay agent as full compensation for all services and for storage, cartage, collecting, insuring, and for agent's guaranty of payment of all sales, and for all other expenses, a commission to be specified by the principal from time to time in writing. (b) Principal shall allow agent an additional commission to be specified by the principal from time to time in said price lists for cash turned in to principal in accordance with said price lists.

"6. Settlement and Accounting: (a) Agent shall obtain cash or promissory notes from purchasers at the time of delivery to them of any of said plant foods, the notes to be on forms furnished by principal, payable to principal, drawing interest at the rate and maturing on the dates specified by said price list, in settlement for all plant foods under this contract. (b) Agent shall make full settlement to principal at said district office on the respective accounting dates for spring and fall sales specified in said price lists, or before these dates, if requested by principal, with cash for all cash sales and purchaser's notes for all time sales.

"7. Principal's property to be kept separate: All unsold plant foods in the hands of the agent and proceeds of sales of plant foods, whether cash, notes, or accounts, shall at all times be the absolute property of the principal and subject to the principal's orders and shall be kept by the agent separate and apart from all other plant foods, cash, notes, and accounts. This provision shall not be affected in any particular by the agent's giving his guaranty note for the invoice value of all plant food at time of shipment to him or thereafter.

"8. Guaranty of Payments: Agent absolutely and unconditionally guarantees prompt payment when due, without principal first exhausting remedies against principal debtors, of all notes and accounts resulting from sales of said plant food made by agent, and as evidence of agent's said guaranty, agent agrees to execute and deliver to principal his guaranty note on form furnished by principal to mature as specified in price list. Said guaranty note shall be for the full invoice price of shipment of plant food and shall be delivered to principal at time of shipment to agent unless a later date is specified in writing by principal. This note is a guaranty note only and shall in no particular affect the relation of principal and agent created under this contract. Agent hereby waives demand, protest, and notice of default in payment by principal debtors of said notes and accounts resulting from sales of plant food made by agent. Authority and consent are hereby expressly given said principal from time to time and without any notice to agent, to give and make such extension, renewals, indulgences, settlements, and compromises as it may deem proper with respect to any of said notes and accounts. The agent's guaranty note shall be credited with the invoice value of all unsold plant food on hand at the end of the season and all cash proceeds of sales and all cash collections turned over to principal on or before final accounting dates. Should suit be brought by principal to enforce any of the obligations created pursuant to this contract, agent agrees to pay all costs, expenses, and attorney fees incurred by principal thereon, and in the event principal incurs cost or collection expense of any kind in collecting or attempting to collect notes or accounts of principal debtor accruing from sales pursuant to this contract, only the net amount received by principal from such notes or accounts shall be credited on the guaranty note or notes of agent. . .

"10. Collection: On or before maturity dates of purchaser's notes, as specified in said price lists, principal will, if it so elects, return to agent all of said purchasers' notes for collection, which notes agent agrees to collect as agent of principal, free of expense to principal, and to remit to principal as and when received all amounts so collected. . .

"12. Records: Agent shall keep a separate record of sales, payments, note transactions and stocks on hand for principal, which principal may examine on demand. Agent shall furnish principal a report of goods remaining on hand and unsold on accounting dates specified in said price lists or at any other time upon request of principal. . .

"17. Agent shall have no lien whatsoever on any property of any kind of the said principal which may come into his possession. Agent waives all rights of set off, recoupment, or counter claim on plant food consigned hereunder, and all cash, notes, and accounts resulting from the sale thereof.

"This agreement as written and printed shall be binding only when confirmed in writing by the district office of Swift and Company at Atlanta, Georgia.

"No person other than a duly qualified authorized district manager of said principal at said district office has authority to waive or to enlarge the terms of this contract and when done by such district manager it must be in writing and attached hereto, or endorsed hereon. No agreement not expressed herein shall be binding upon the principal.

"Signed in Duplicate Swift Company Confirmed at Atlanta, Georgia T. J. Mauldin (Seal) the 11th day of September, 1951 Field Repre. Swift Company (Seal) Wm. H. Moreland, Jr. (Seal) By: A. L. Wiley (Seal) Agent

"Guaranty

"In consideration that, and as an inducement to Swift Company (hereinafter designated as principal) to execute the contract appearing on the reverse side of this sheet, without which it is understood said principal would not have signed the same and the sum of One Dollar ($1.00) to each of the undersigned in hand paid by said principal, and other good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned, jointly and severally, hereby guarantee the full, prompt and complete performance by said Wm. H. Moreland, (hereinafter designated as agent) of all the terms and conditions contained in contract appearing on the reverse side of this sheet, to be by said agent kept and performed, and the undersigned hereby jointly and severally further promise and guarantee the unconditional payment at maturity of all accounts receivable, acceptances, notes, and other obligations of every nature and kind arising out of or in connection with the said contract, whether now owing or due by whomsoever or howsoever, heretofore or hereafter, created, or arising, or evidenced, and hereby waive demand, protest, and notice of nonpayment of any and all said indebtedness, liabilities, and obligations.

"Authority and consent are hereby expressly given said principal from time to time, and without any notice to the undersigned, to give and make such extensions, renewals, indulgences, settlements, and compromises as it may deem proper with respect to any of the indebtedness, liabilities, and obligations covered by this guaranty. This guaranty shall bind the party (or parties) by whom it is signed, whether the same be signed by one or more guarantors.

"It is understood that this is a continuing, absolute and unconditional guaranty, co-extensive with said contract between said principal and said agent, and the undersigned and each of them hereby expressly waives notice of acceptance of this guaranty and of all defaults by said agent and of nonpayment and nonfulfillment of any and all of said indebtedness, liabilities, and obligations.

"Signed and sealed by the undersigned this 6 day of September, A. D., 1951."

The plaintiff alleged further that, on April 7, 1953, Moreland was adjudged a bankrupt, and that at the time Moreland became a bankrupt, he was indebted to the plaintiff in the amount stated above, which sum the defendant is obligated to pay according to the terms of his agreement.

The defendant demurred to the petition upon the ground that it stated no cause of action, and failed to show an inability on the part of Moreland to respond to any judgment which the plaintiff might obtain on the contract. It nowhere appears, however, from the record before us that any ruling was made upon these demurrers.

The defendant filed a plea in abatement to the action, upon the ground that, although Moreland had been adjudged a bankrupt, he had not at the time of the filing of the plea been discharged. The trial court sustained a general demurrer to the plea in abatement, and the defendant assigns error upon that judgment.

The defendant filed an answer, generally denying the material allegations of the petition, and in this answer as first amended, alleged substantially the following:

(6) The defendant admits the execution of the contract, signed by him, but alleges that the contract was obtained by fraud, and even if valid as a contract of suretyship, the defendant has been discharged by reason of the facts hereinafter alleged. (8) For want of sufficient information the defendant can neither admit nor deny the alleged indebtedness of Moreland to the plaintiff, but denies that he is obligated to pay the plaintiff any part of such indebtedness. (10) In the summer of 1951, the exact date being unknown to the defendant, T. J. Mauldin, field representative of the plaintiff, who handled the execution of the contract between the plaintiff and Moreland and the execution of the alleged contract between the defendant and the plaintiff, came to the defendant while he was busily engaged in certain construction and informed the defendant that Moreland had agreed to serve as agent of the plaintiff in the sale of fertilizer and that pending Moreland's establishment of satisfactory business relations with the plaintiff, it was the policy of the plaintiff to seek someone to vouch for him and the responsibility of such voucher would be only for the fall season of 1951, during which time the plaintiff would satisfy itself as to Moreland's responsibility, and that the defendant's vouching for Moreland would be only a matter of form with no possibility of financial loss on the defendant's part. It was represented that the cash belonging to the plaintiff received from sales of its fertilizers by Moreland would be kept separate and apart from other monies in the possession of Moreland. The contracts were printed in very fine print, and while the defendant was apprised of some of their terms, he was unable to read and understand all of the terms of the contract, and because of the work in which he was engaged had no opportunity to do so, even if it had been possible for him to do so under other conditions, and the defendant relied entirely upon the representations made by Mauldin as to the conditions, terms, and purposes of the contract. (11) Those representations were false and fraudulent and were willfully made for the purpose of deceiving the defendant and to induce him to sign the so-called contract of guaranty. These representations were as to material subject matters. The defendant relied upon them, and, because of such reliance upon such false representations, signed the contract. In the procuring of his signature to the contract Mauldin had Moreland to represent to the defendant that the contract covered only the fall season of 1951 and would then expire unless renewed. (12) Thereafter, the exact date being unknown to the defendant, Mauldin brought a contract into the defendant's store and told him that it was a contract which he had previously explained to him. The defendant, being busily engaged in the affairs of his business, relied entirely upon the fraudulent misrepresentations which had been made to him as to the contents and the purposes of the contract, and signed without understanding its contents, and because of having been fraudulently misled as hereinbefore detailed in pursuance of a scheme by the plaintiff's agent to deceive the defendant and procure his signature to the contract.

(13) There was no consideration flowing to the defendant of any kind or character for the execution of the contract. He did not receive the $1 mentioned in the contract as consideration therefor and it was agreed, as recited in the contract, that the appointment of Moreland as agent for the plaintiff was to be a consideration for the execution of the contract by the defendant. The defendant insists, therefore, that even if the contract be a valid one, it is a contract of suretyship and not one of guaranty, and that even if it be a valid contract, the defendant has been discharged from all obligations thereunder by reason of the plaintiff's conduct. (14) Under paragraph 2 of the contract between the plaintiff and Moreland, the defendant had the right at any time to terminate his obligation under the contract by giving written notice, which he would have done had he not been misled into believing that his obligations thereunder ceased at the end of the fall season of 1951, but after the expiration of the fall season, and after Moreland had fully settled all his obligations to the plaintiff accruing during that season, the plaintiff, through its field representative, one Foster, who had succeeded Mauldin in that capacity, came to him and asked him if he would continue to vouch for Moreland. The defendant asked Foster if the relationship between the plaintiff and Moreland had been satisfactory and was informed that such was the case. The defendant then told Foster that he saw no reason why he should again vouch for Moreland for a period of time beyond the fall season. Foster did not state to the defendant that he was to be held further responsible for Moreland's account, and if he had done so, the defendant would have at once made a proper investigation of the contract which he had signed and if he had discovered that the contract in fact purported to bind him for an indefinite period of time, he would have taken proper steps to terminate his responsibility under the contract. The plaintiff, by its initial misrepresentation through its agent, Mauldin, as to the contents of the contract and by its representations by its agent Foster as to the necessity for a further agreement by the defendant in order for him to be liable beyond the fall season of 1951 is equitably estopped from insisting upon any liability upon the part of the defendant as surety, guarantor, or otherwise. (15) As the fraudulent misrepresentations as hereinbefore detailed induced the defendant to sign the contract, such contract should be held to be null and void as against him. (16) Because of the alleged conduct of the plaintiff's agents, Mauldin and Foster, the plaintiff should be held to be equitably estopped from asserting any rights under the contract against the defendant, even if the contract is not rescinded upon the basis of fraud in its procurement. (17) If the contract is not rescinded upon the ground of fraud, and if it should be held that the plaintiff is not equitably estopped to insist upon the contract as against the defendant, the defendant's obligations under the contract are those of a surety only, and the defendant as surety has been discharged by reason of the following facts: (a) Under paragraph 6 of the plaintiff's contract with Moreland, it is provided that Moreland should obtain cash or promissory notes from purchasers of all the plaintiff's goods sold by him, and should make full settlement with the plaintiff on the respective accounting dates for the spring and fall sales. Moreland did not obtain cash or promissory notes for more than half of the goods sold by him for the plaintiff, but sold fully one-half of the goods on open account, charging the purchasers on his books with indebtedness to him and not to the plaintiff. (b) Paragraph 7 of the contract provides that the proceeds from sales of plant food for the plaintiff whether cash, notes, or accounts, should at all times be the absolute property of the plaintiff and should be kept by Moreland separate and apart from all other cash, notes, and accounts. Moreland did not comply with this clause in his contract, but deposited cash from the sale of plaintiff's goods to his own account in the bank and mingled it with his other funds. He also sold fertilizers for another company and charged these sales on his books on open account to the purchasers and it was impossible to ascertain from his books or otherwise which fertilizers were sold for the plaintiff and which were sold for the other company, or what portion of the cash deposited by him in the bank was deposited by him from funds which were the property of the plaintiff and what portion came from other sources. (c) When Moreland was adjudged a bankrupt, there were accounts on his books for approximately $1,800 for fertilizers, and it cannot be ascertained which of these accounts were for fertilizer belonging to the plaintiff and which were for fertilizers belonging to another company. There was on deposit in Moreland's bank account the sum of $4,000 which had been derived in part from sales of the plaintiff's fertilizers by Moreland, but it cannot be ascertained what portion of this cash belonged to the plaintiff. (d) These practices on the part of Moreland were within the knowledge of the plaintiff and not within the knowledge of the defendant. The plaintiff accepted Moreland's personal checks in payment for its goods consigned to Moreland and knew that Moreland had intermixed its funds with other funds in his personal banking account in violation of his contract. These acts on the part of Moreland, which were done with the knowledge and approval of the plaintiff, increased the defendant's risk under the contract without his knowledge and consent. (e) If the plaintiff's accounts and cash had been kept separate from Moreland's personal assets as provided under the contract, the plaintiff could have filed claim therefor in the bankruptcy court, and those accounts and cash would not have been administered as the property of Moreland in the bankruptcy proceedings. The laches of the plaintiff in these particulars entitles the defendant to discharge from liability as surety, even if the contract is not invalidated for fraud and even if the plaintiff is not held to be equitably estopped from insisting upon the defendant's performance thereunder.

The trial court sustained the plaintiff's demurrers to paragraphs 6, 10, 11, 12, 14, 15, and 16 of the answer as amended and struck those paragraphs. The trial court overruled the demurrers to paragraphs 13 and 17. The defendant assigns error upon the judgment sustaining the demurrers and striking the enumerated paragraphs from his answer as amended.

Following the ruling upon the demurrers, the defendant further amended his petition to add subparagraph (f) to paragraph 17 of his answer as amended. In this amendment, he alleges that, after the fall season of 1951 had been completed and before the beginning of the season during which the goods herein sued for are alleged to have been furnished by the plaintiff to Moreland, the plaintiff's agent, Foster, who was in charge of the plaintiff's business in the area, came to the defendant and stated to him, in response to the defendant's inquiry, that Moreland was then and had been theretofore complying in full with the terms of his contract with the plaintiff. The defendant relied upon this representation, and had he known that Moreland had not been and was not complying with the terms of his contract, he could have and would have taken steps to protect himself from further liability. The defendant's risks under the terms of the contract were thereby increased by this affirmative action and he has been discharged as surety on the contract.

Upon the trial of the case, counsel for the defendant admitted the delivery to Moreland of the goods covered by the account. The trial court directed a verdict for the plaintiff in the amount sued for, together with interest and attorneys fees. In his cross-bill of exceptions in this court, the defendant assigned error upon that judgment.

The defendant's motion for a new trial, based upon the usual general grounds and 2 special grounds, was denied, and the defendant assigns error upon that judgment.

By cross-bill of exceptions the plaintiff assigns error upon the trial court's judgment overruling its demurrers to paragraphs 13 and 17 of the defendant's answer as amended.

CARLISLE, J.

1. "The construction of a contract is a question of law for the court." Code § 20-701.

"In differentiating contracts of suretyship from contracts of guaranty, Justice Cobb, speaking for the court in the case of Manry v. Waxelbaum, 108 Ga. 14, 17 ( 33 S.E. 701), said: `One difference is pointed out by our code. It says that a contract of suretyship "differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor." Civil Code [of 1895], § 2966. . . In brief, we understand the difference to be this: A surety binds himself to perform if the principal does not, without regard to his ability to do so. His contract is equally absolute with that of his principal. They may be sued in the same action, and judgment may be entered up against both. A guarantor, on the other hand, does not contract that the principal will pay, but simply that he is able to do so; in other words, a guarantor warrants nothing but the solvency of the principal. Before an action can be maintained against a guarantor, therefore, it must be shown that the principal is unable to perform. The surety says to the creditor, if your debtor will not pay I will pay. The guarantor says to him, proceed first against the principal, and if he should not be able to pay, then you may proceed against me. It has been said that there is no instance in the books of a guarantor contracting jointly with his principal.' `It is often difficult to tell whether a particular contract is one of guaranty or suretyship. "A surety and a guarantor have this in common, that they are both bound for another person; yet there are points of difference between them which should be carefully noted. A surety is usually bound with his principal by the same instrument, executed at the same time and on the same consideration. He is an original promisor and debtor from the beginning, and is held ordinarily to know every default of his principal. . . On the other hand, the contract of the guarantor is his own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal, and is often founded on a separate consideration from that supporting the contract of the principal. The original contract of the principal is not the guarantor's contract, and the guarantor is not bound to take notice of its performance." 1 Brandt on Suretyship (3d ed.), § 2. The surety joins in the same promise as his principal and is primarily liable; the guarantor makes a separate and individual promise and is only secondarily liable. His liability is contingent on the default of his principal, and he only becomes absolutely liable when such default takes place and he is notified thereof.' Musgrove v. Luther Publishing Co., 5 Ga. App. 279, 281 ( 63 S.E. 52). `In those cases relating to negotiable instruments, where, from the nature of the transaction and of the instrument, the sole test which need be applied is the one mentioned by the code section quoted, . . . there is no great difficulty in arriving at a conclusion as to the nature of the contract. But since the distinguishing characteristics between these two kinds of contracts are not thus limited by the question of consideration, and since the test which has been mentioned is more in the nature of an earmark, not such as to constitute but such as merely to indicate the true nature of the contract, and since such a test is therefore frequently indecisive . . , it is often necessary to bear in mind the true and fundamental distinctions between the one contract and the other. . . It is evident that a surety, who simply joins the principal in thus becoming liable upon the principal's obligation, will usually, from the nature of such transaction, become "bound with his principal by the same instrument, executed at the same time and on the same consideration" (1 Brandt on Suretyship (3d ed.) § 2 . . .); while a guarantor, who enters upon his own separate and distinct undertaking, will usually, from the nature of such a transaction, become bound before or after the obligation of the principal, and the contract "is often founded on a separate consideration from that supporting the contract of the principal." Brandt on Suretyship, supra. Thus it is that since the contract of guaranty must, like all other contracts, be founded on a consideration, and since the guarantor's promise can not be presumed to be founded on the consideration supporting the separate promise of the principal debtor, in which the guarantor does not join, it follows that as a general proposition a contract of guaranty must be expected to be founded on some new or independent consideration flowing directly to the guarantor. Civil Code (1910), § 3538. Such, as already indicated, need not always be the case, however; as, for example, where one has guaranteed payment for goods before their delivery, and on the faith of such guaranty, a sale and delivery is thereafter made to the principal. Sims v. Clark, 91 Ga. 302 (2) ( 18 S.E. 158); Holmes v. Schwab, 141 Ga. 44 ( 80 S.E. 313); Small Co. v. Claxton, 1 Ga. App. 83 ( 57 S.E. 977); Sheffield v. Whitfield, 6 Ga. App. 762 ( 65 S.E. 807); 28 C. J. 915, § 46 et seq. In cases such as these the agreement has been construed and upheld as a contract of guaranty, although no benefit flowing to the guarantor is apparent, unless it be under the general presumption that some benefit inures to him on account of credit extended to his principal. 1 Brandt on Suretyship (3d ed.), § 25.' Etheridge v. Rawleigh Co., 29 Ga. App. 698, 702 ( 116 S.E. 903)." Brilliant Coal Co. v. Gandy, 51 Ga. App. 264, 265 ( 180 S.E. 379).

Properly construed in the light of the foregoing authorities, the contract under which the plaintiff seeks to hold the defendant liable for the unpaid balance on the account between the plaintiff and Moreland, is one of guaranty. The paper alleged to have been signed by Moreland on July 31, 1951, did not become effective as a contract until the agreement contained therein was confirmed by the plaintiff on September 11, 1951, and this confirmation was not entered upon that agreement until the defendant had, on September 6, 1951, entered into his separate agreement with the plaintiff. The defendant's agreement recites that a consideration, separate from that contained in the contract between the plaintiff and Moreland has been paid the defendant, and that specified goods are to be shipped to Moreland upon the strength of the defendant's guaranty of full performance by Moreland of his contract, under the terms of which the plaintiff is to ship certain goods to Moreland to be sold by him as the plaintiff's agent and for which Moreland is to account to the plaintiff in a specified manner.

2. A discharge in bankruptcy of a principal debtor from his liability under the terms of a contract to which he is a party does not generally operate to discharge his surety or guarantor. 11 U.S.C.A. § 34; Hearn v. Durrence, 33 Ga. App. 296 ( 125 S.E. 794); DeLoach v. Kennedy, 23 Ga. App. 736 ( 99 S.E. 314); Steinhouser Wight v. Adair, 20 Ga. App. 733 ( 93 S.E. 280). There was, consequently, no error in the trial court's refusal to abate the action against the defendant upon the ground urged in the plea that, while Moreland had been adjudged a bankrupt, he had not been finally discharged.

3. By his answer as amended the defendant sought to defend upon the grounds that the contractor's guaranty was fraudulently procured by the plaintiff's agent's false representations to the defendant as to the contents and purposes of the contract; that the plaintiff is estopped to enforce the contract of guaranty because the plaintiff's agent falsely represented to the defendant that his liability under the terms of the contract of guaranty would terminate at the end of the fall season of 1951, when in fact such was not the requirement of the contract under its terms; that Moreland's contract required him to sell the plaintiff's products for cash, on promissory notes payable to the plaintiff, and to keep the cash and accounts on such sales entirely separate from any other business which he was conducting; but Moreland had sold the plaintiff's products on open account, taking promissory notes from some sales in his own name, had failed to keep his accounts on such sales separate from his own business, and had commingled cash belonging to the plaintiff with cash from his other business; and that the plaintiff, knowing these facts and not informing the defendant thereof, had increased the defendant's risk.

"Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. Stoddard Mfg. Co. v. Adams, 122 Ga. 802 ( 50 S.E. 915), and cit.; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) ( 56 S.E. 1030); Lewis v. Foy, 189 Ga. 596, 598 ( 6 S.E.2d 788), and cit,; Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 ( 94 S.E. 892); Odum v. Cotton States Fertilizer Co., 38 Ga. App. 46 (2) ( 142 S.E. 470); Gossett v. Wilder, 46 Ga. App. 651 (7), 653 ( 168 S.E. 903); Hodge v. Milam, 48 Ga. App. 105 ( 171 S.E. 870)." Morrison v. Roberts, 195 Ga. 45 ( 23 S.E.2d 164).

The defendant in his answer does not allege that any confidential or fiduciary relationship existed between him and the plaintiff's agent such as to warrant his reliance upon the agent's representations as to the contents and purposes of the contract of guaranty, saying only that he was occupied with his other business at the time he was induced to sign the contract without reading and apprising himself of the contents and purposes of the contract. No facts are alleged showing actual fraud on the defendant, and he cannot, consequently, under the authority of the cases cited above, defend upon the ground that the contents and purposes of the contract were misrepresented to him.

Had the defendant read his contract before signing it, he would have known that the term of it was to be "coextensive" with that of the contract between Moreland and the plaintiff. He also would have known that he guaranteed Moreland's full performance of the requirements of his contract to keep the plaintiff's cash and accounts separate from his other business, and to sell the plaintiff's products only for cash, or on promissory notes, and not on credit. He also would have known that by the terms of the contract of guaranty it waived notice of Moreland's "non-payment and non-fulfillment of any and all of said indebtedness, liabilities, and obligations." These efforts to defend against the contract of guaranty were nothing more than attempts to vary the express terms of the written contract, which he cannot do. The trial court did not err, therefore, in sustaining the plaintiff's demurrers and in striking paragraphs 6, 11, 12, 13, 14, and 16 of the defendant's answer as amended, and the court should, properly, have sustained the demurrer to and stricken paragraph 17 of that answer.

4. Since, properly construed, defendant's contract with the plaintiff is one of guaranty and no action was taken by the trial court to fix it as the law of the case that the contract is one of surety, the action must be construed as having been brought upon a contract of guaranty.

"Ordinarily, a guarantor cannot be sued to judgment on a contract of guaranty in the absence of a prior judgment against the principal and a nulla bona return, unless it is alleged and proved that the principal debtor is insolvent or that he cannot be made to respond to a judgment that may be obtained against him by the plaintiff." Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 33, 35 ( 16 S.E.2d 909); Ferguson v. Atlanta Newspapers, 91 Ga. App. 115 ( 85 S.E.2d 72).

While it was stipulated upon the trial on February 15, 1955, that Moreland had been adjudged a bankrupt on April 7, 1953, there was no evidence that he had been discharged in the bankruptcy proceedings from liability for the debt here in question, nor was it shown that he was insolvent or could not be made to respond to a judgment in favor of the plaintiff at the time of the trial in this case. The evidence was, consequently, insufficient to authorize a verdict for the plaintiff and the trial court erred in directing a verdict for it. Ferguson v. Atlanta Newspapers, supra.

5. The other error assigned in the motion for a new trial is such as is not likely to recur upon another trial and is not considered.

Judgment reversed upon main bill and cross-bill. Gardner, P. J., and Townsend, J., concur.