Kennedy v. Thruway Service City, Inc.
Decision Date | 05 February 1975 |
Docket Number | No. 1,No. 49956,49956,1 |
Citation | 133 Ga.App. 858,212 S.E.2d 492 |
Parties | Charles I. KENNEDY et al. v. THRUWAY SERVICE CITY, INC |
Court | Georgia Court of Appeals |
Patrick, Sidener, Bryant & Hamner, Griffin Patrick, Jr., Charles L. Barrett, III, East Point, for appellants.
Ketzky & Hipp, Loeb C. Ketzky, LaGrange, for appellee.
Syllabus Opinion by the Court
Thruway Service City, Inc. brought suit in the State Court of Troup County against Alton Murdock Faile, a resident of Troup County, and Charles I. Kennedy and C. P. Stephenson, residents of Fulton County, seeking recovery of unpaid rentals on certain restaurants and a motel totaling $7,012.23. Involved were (1) a lease agreement between Thruway and Faile dated February 8, 1972 and by its terms expiring August 29, 1973, and (2) an agreement by Kennedy and Stephenson dated May 11, 1972. This latter agreement is entitled 'Letter of Intent' and reads: 'We, the undersigned, Charles I. Kennedy and C. P. Stephenson, with reference to the Longhorn Restaurant, Steak Pit Restaurant, and Thruway Motel located at I-85 and Beaver Ruin Road, Norcross, Georgia, intend to pay Thruway Service City, Inc., lessors, the balance of rent due for the month of April, $2,108.33, within 60 days from this date, and we also propose to pay the rent in weekly instalments by check on the first Monday of each week on a pro rata basis for the balance of the term of the lease, expiring August 29, 1973.'
The record shows that Faile leased the restaurants and the motel from Thruway from February 10, 1972 to August 29, 1973, at a monthly rental of $2,308.33 plus one-third of the property tax, that Kennedy and Stephenson were 'backers' of Faile, that they were a 'silent partner,' that their arrangement was as a 'partnership' or a 'joint venture,' that at the time the lease agreement was executed by Faile the first and last months' rental was paid by Stephenson, and that Thruway would not 'have put him (Faile) in' possession of the premises without the involvement of Kennedy and Stephenson.
Faile did not make his April, 1972 rental payment, and Thruway notified Kennedy and Stephenson 'to make sure that this is paid because it is your responsibility.' In May, 1972 the auditor and bookkeeper for Thruway and Mrs. Lillian E. Shaprey, who was connected with Thruway
Thereafter Kennedy and Stephenson deposited $600 weekly to the account of Thruway in C. & S. Bank of Chamblee, sending to Thruway the deposit slips under the letterhead of Stephenson Chemical Company. This continued until about August, 1972.
Mrs. Shaprey testified that she was present when the agreement was signed by Messrs. Kennedy and Stephenson, that
Under cross examination, Mrs. Shaprey testified:
A verdict was returned for Thruway, judgment was entered against all three defendants, and Kennedy and Stephenson appealed. A motion by these two for the dismissal of the complaint as to them was denied, as was their motion for a directed verdict. The denials of these two motions are enumerated as error.
Kennedy and Stephenson submit that the case must stand or fall on the so-called 'Letter of Intent' dated May 11, 1972 which they signed. It is their contention that the 'Letter of Intent' was executed subsequent to Faile's lease agreement and evidenced an 'original undertaking' by them, that their agreement was but a contract of guaranty and not of suretyship, that a guarantor must be sued in the county of his residence, and inasmuch as they are residents of Fulton County the trial court in Troup County lacked jurisdiction. They further contend that the evidence demanded a verdict for them, that their agreement makes no reference to Faile or the lease agreement, that there was no evidence from which the jury might infer that they assumed Faile's obligation under the lease agreement, and that there was no showing that there was a contract of suretyship. Held:
1. The designation of the agreement by Kennedy and Stephenson to pay the rental as 'Letter of Intent' is of little consequence. Mere nomenclature is not of itself determinative as to whether a contract is one of guaranty or suretyship. The contents of a can of sliced beets are not changed by a label denoting them to be garden peas. It is the substance and the real intent of the parties which determine the character of an agreement. Wolkin v. National Acceptance Co., 222 Ga. 487, 489, 150...
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