GA Code § 11-3-116 (2021)
2021 Georgia Code|Title 11 - Commercial Code|Article 3 - Negotiable Instruments|Part 1 - General Provisions and Definitions|§ 11-3-116. Joint and Several Liability; Contribution

  Except as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, indorsers who indorse as joint payees, or anomalous indorsers are jointly and severally liable in the capacity in which they sign.   Except as provided in subsection (e) of Code Section 11-3-419 or by agreement of the affected parties, a party having joint and several liability who pays the instrument is entitled to receive from any party having the same joint and several liability contribution in accordance with applicable law.   Discharge of one party having joint and several liability by a person entitled to enforce the instrument does not affect the right under subsection (b) of this Code section of a party having the same joint and several liability to receive contribution from the party discharged.     (Code 1981, §11-3-116, enacted by Ga. L. 1996, p. 1306, § 3.)   Law reviews.   - Wills, Trusts & Administration of Estates, see 53 Mercer L. Rev. 499 (2001).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the provisions, decisions under former Code Section 11-3-118 are included in the annotations for this section.   Liability of two or more makers to note.    - Under this section, whenever two or more persons sign as maker they are jointly and severally liable unless instrument in its own language specifies obligation differently, e.g., "we jointly promise" or "we promise severally." Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598 (1968) (decided under former Code Section11-3-118).   "We promise to pay."    - A promissory note signed by two or more persons as makers, and containing the words, "I, we, or either of us promise to pay," imports joint and several liability of makers. This comports with this section. Powell v. Mobley, 166 Ga. 163, 142 S.E. 678 (1928) (decided under former Ga. L. 1924, p. 126, § 17(7)).    Where negotiable instrument contains words "we promise to pay" and is signed by three parties, absent specific provision to contrary, comakers are jointly and severally liable under provisions of this section. Simpson v. Wages, 119 Ga. App. 324, 167 S.E.2d 213 (1969) (decided under former Code Section11-3-118).    Where promissory note is signed by three persons as comakers and contains language "we promise to pay," liability is joint and several, and an action against two comakers is sustainable even though one comaker is dismissed as a party defendant. Hubert v. Lawson, 146 Ga. App. 698, 247 S.E.2d 223 (1978) (decided under former Code Section11-3-118).   "Lessees agree to pay."   - Lessees under a contract which provided that "lessees agree to pay" were jointly bound under the contract. Brackin Tie, Lumber & Chip Co. v. McLarty Farms, Inc., 95 F.R.D. 328 (S.D. Ga. 1982), aff'd, 704 F.2d 585 (11th Cir. 1983) (decided under former Code Section 11-3-118).   Failure to join one of two makers.    - Contention that failure of plaintiff to join one of two makers of note as party defendant, without showing that party defendant was dead or could not be found, was fatal to plaintiff's suit on note, was without merit, since under paragraph (7) of former Code 1933, § 14-217, makers are considered jointly and severally liable unless otherwise specified. Bullard v. Holman, 184 Ga. 788, 193 S.E. 586 (1937) (decided under former Code 1933, § 14-217).   Individual debt of one of parties executing security deed.    - See Americus Fin. Co. v. Wilson, 189 Ga. 635, 7 S.E.2d 259 (1940); Bank of LaFayette v. Giles, 208 Ga. 674, 69 S.E.2d 78 (1952); Cordele Banking Co. v. Powers, 217 Ga. 616, 124 S.E.2d 275 (1962); Hill v. Perkins, 218 Ga. 354, 127 S.E.2d 909 (1962).    Cited in Peavy v. Bank South, N.A., 222 Ga. App. 501, 474 S.E.2d 690 (1996); Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16 (1999).   RESEARCH REFERENCES   Am. Jur. 2d.   - 11 Am. Jur. 2d, Bills and Notes, §§ 43, 99, 128. 12 Am. Jur. 2d, Bills and Notes, §§ 427 et seq., 439, 447 et seq., 471. 17A Am. Jur. 2d, Contracts, § 395. 20 Am. Jur. 2d, Counterclaim, Recoupment, and Offset, § 83. 45 Am. Jur. 2d, Interest and Usury, §§ 18, 51.   U.L.A.   - Uniform Commercial Code (U.L.A.) § 3-116.   ALR.    - Effect of death of one of joint payees of bill or note, 57 A.L.R. 600.    Payment to, or endorsement by, indicated beneficiary of check purporting to be payable or endorsed to one person "for another,", 61 A.L.R. 272.   Liability of bank for overpayment of Federal Government check, 96 A.L.R. Fed. 908.