Panasonic Indus. Co. v. Hall

Citation399 S.E.2d 733,197 Ga.App. 860
Decision Date04 December 1990
Docket NumberNo. A90A0962,A90A0962
CourtUnited States Court of Appeals (Georgia)

David S. Beale, Novy & James, R. Craig Henderson, Atlanta, for appellant.

Louis F. Ricciuti, Decatur, for appellees.

POPE, Judge.

Plaintiff/appellant Panasonic Industrial Company brought suit against defendant/appellee Capital Business Systems, Inc., and defendant/appellee Jack D. Hall, as guarantor, alleging that defendants were indebted to it for typewriters and other merchandise supplied on an open account to Capital Business pursuant to the parties' dealership agreement. The trial court directed a verdict for defendant Hall, and Panasonic and Capital Business agreed to settle the remaining issues pursuant to a consent agreement. Held:

1. In its first enumeration of error Panasonic contends that the trial court erred in directing a verdict in favor of Hall on the basis of OCGA § 10-7-22, 1 which provides for an automatic discharge of the surety if the creditor commits an act which, inter alia, increases the risk of the surety. In this case the trial court concluded that because Panasonic filed its Financing Statement in the wrong county, which allowed another creditor with a properly filed financing statement to assert a superior lien to the equipment securing the parties' open account agreement, Hall's risk was increased and thus he was discharged as a matter of law. We agree with the trial court that the action of Panasonic increased the risk of the surety. The question then becomes whether Hall, pursuant to the terms of the written guaranty of payment, consented in advance to the action of Panasonic with respect to the collateral here. We find that he did and thus reverse the judgment of the trial court granting a directed verdict in his favor.

The guaranty here was absolute and unconditional, and contained a specific waiver by Hall of "all defenses, offsets and counterclaims which [he] ... may now or hereafter have upon any Obligation hereon...." Moreover, paragraph 5 of the agreement provided, in pertinent part, as follows: "[The guarantor] hereby consents and agrees that Panasonic may at any time or from time to time, in its discretion, before or after any default of [Capital Business] with respect to any Obligations hereunder and without notice to, knowledge of or assent from the [guarantor]: ... (b) exchange release or surrender any or all collateral security now or hereafter held ... in connection with any or all Obligations of [Capital Business] to Panasonic.... Any or all of the foregoing shall be accomplished by Panasonic in such manner and upon such terms as it sees fit, and the [guarantor] shall remain bound upon this Guaranty notwithstanding any such action taken by [Panasonic]."

We agree that by the above language Hall consented to the action of Panasonic with respect to the collateral securing the obligation here. "A party may consent in advance to the conduct of future transactions and will not be heard to 'claim his own discharge' upon the occurrence of that conduct. [Cits.]" Thurmond v. Ga. R. Bank, etc., Co., 162 Ga.App. 245, 247(1), 290 S.E.2d 126 (1982). Under the...

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9 cases
  • Gunter v. True
    • United States
    • Georgia Court of Appeals
    • February 19, 1992
    ...471 (1988), and open accounts, Cities Svc. Oil Co. v. Collins, 121 Ga.App. 38, 172 S.E.2d 653 (1970); Panasonic Indus. Co. v. Hall, 197 Ga.App. 860, 861, fn. 1, 399 S.E.2d 733 (1990). It does not follow, however, that Article 3 does govern all guaranties which are "ancillary to notes or oth......
  • Fielbon Dev. V. Colony Bank of Houston
    • United States
    • Georgia Court of Appeals
    • March 26, 2008 `claim his own discharge' upon the occurrence of that conduct." (Citation and punctuation omitted.) Panasonic Industrial Co. v. Hall, 197 Ga.App. 860, 861 (1), 399 S.E.2d 733 (1990) (guarantor consented in advance to bank's actions in filing financing statement in wrong county, allowing ......
  • Caves v. Columbus Bank & Trust Co.
    • United States
    • Georgia Court of Appeals
    • November 13, 2003
    ...281 S.E.2d 324 (1981). 16. Id. at 581, 281 S.E.2d 324. 17. Id. at 581-582, 281 S.E.2d 324; see also Panasonic Indus. Co. v. Hall, 197 Ga.App. 860, 861(1), 399 S.E.2d 733 (1990). 18. See Bobbitt, supra at 581-582, 281 S.E.2d 19. See id.; see also Heath, supra at 539(2), 559 S.E.2d 743 (guara......
  • Lothridge v. First Nat. Bank of Gainesville
    • United States
    • Georgia Court of Appeals
    • July 5, 1995
    ...other collateral, he waived his right to assert that the release of collateral resulted in his discharge. See Panasonic Indus. Co. v. Hall, 197 Ga.App. 860, 399 S.E.2d 733 (1990). 3. Lothridge contends that even if he was not discharged from liability under the guaranty, a jury issue remain......
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