Julius Levy Sons Co. v. Orlansky

Citations

• 111 Miss. 331
• 71 So. 571

Syllabus

<p>1. Pleadins. Demurrer. Right to plead over. Prerequisites. Waiver. Guaranty. Defenses.</p> <p>Conceding that section 755, Code 1906, is mandatory in requiring that an affidavit of the merits of the defense must first be made as a prerequisite to pleading over after demurrer to the declaration is overruled, yet this statutory requirement may be waived by a party to the litigation and a party waives it when he fails to object to, and acquiesces in, the action of the court in granting leave to plead further.</p> <p>2. Guaranty. Defenses. Pleading.</p> <p>A plea of a surety whose contract provides for liability until terminated in-writing, that the creditor expressly agreed to cancel the contract of suretyship and release the surety “states a good defense and is not demurrable.</p>