Smith v. Singleton, 46261
| Decision Date | 08 September 1971 |
| Docket Number | No. 46261,No. 2,46261,2 |
| Citation | 124 Ga.App. 394,184 S.E.2d 26 |
| Parties | , 9 UCC Rep.Serv. 1251 Fred B. SMITH, Jr., et al. v. Kenneth L. SINGLETON et al |
| Court | Georgia Court of Appeals |
Covington, Kilpatrick & Storey, J. S. Kilpatrick, Rome, for appellants.
E. J. Clower, Rome, for appellees.
Syllabus Opinion by the Court
Kenneth L. Singleton and Jimmy W. Singleton, the assignees and successors of a partnership d/b/a Rome Tractor Company, commenced this action to recover from Fred B. Smith, Jr., and Hugh Keown, the alleged unpaid balance of $7,322.48 due on a promissory note, payable in instalments, for the sale of a skidder, $917.37 for repairs in preparation for resale, and $1,098.37 in attorney's fees. They amended the claim to allow a credit of $7,000 realized from resale and reduced the claim to $322.48 on the note, $917.37 for repairs, and $148.90 in attorney's fees, for a total of $1,388.75. The jury found for the plaintiffs in this amount, and the defendants appeal from the judgment thereon. Held:
1. Copies of the notices sent to the debtors by certified mail dated November 12, 1969, advising them of an intention to dispose of the collateral after November 28, 1969, affording them an opportunity to redeem the collateral, and advising them of liability for any deficiency after sale, disclose a compliance with Code Ann. § 109A-9-504(3) requiring 'reasonable notification of the time after which any private sale * * * is to be made' and were properly received in evidence for this purpose, and no basis is shown to support a contention of accord and satisfaction by reason of insufficient notice of the sale of the collateral, or instructions to the jury in this respect. See Steelman v. Associates Discount Corporation, 121 Ga.App., 649(3), 175 S.E.2d 62, involving notice of sale under a motor vehicle contract antedating the Motor Vehicle Sales Finance Act. The cases cited by the defendant, Moody v. Nides Finance Company, Inc., 115 Ga.App. 859, 156 S.E.2d 310, and Braswell v. American National Bank, 117 Ga.App. 699, 161 S.E.2d 420, are clearly distinguishable on their facts.
2. On the security instrument Keown's signature appears as that of an unqualified co-maker. It is undisputed from the evidence that in fact the original transferee would not approve Smith alone as a credit risk, and refused to accept the contract unless it bore the signature of another person deemed to be an acceptable credit risk, and that for this reason Keown signed the contract after the transaction was otherwise completed. The defendants contend that Keown is actually a guarantor and that any action must be brought in Gordon County, where Smith resides, instead of Floyd County, where Keown resides. Code Ann. § 109A-3-416, purporting to define the contract of a guarantor, is, by its express language, confined to situations where some writing appears on the instrument to disclose a contract of guaranty. 'It states the commercial understanding as to the meaning and effect of words of guaranty added to a signature.' (Emphasis added.) UCC, 1962 Official Text with Comments, The American Law Institute and National Conference of Commissioner on Uniform State Laws, p. 310. Here there is no writing of such import 'added to a signature.' That in some cases 'the accommodation character may be shown by oral proof' (Code Ann. § 109A-3-415(3)) is also no authority for the broad assertion that the signer may show by oral testimony any capacity in which he signed. Instead, what is admissible is 'parol evidence to prove that the party has signed for accommodation.' UCC, 1962 Official Text with Comments, supra, p. 309. Here there is no dispute as to the fact that Keown signed as an accommodation party. In our opinion, conceding that he signed as an accommodation party, his liability is determined by the capacity in which he signed as shown on the instrument. see Code Ann. § 109A-3-415(2).
3. There is no merit in the contention that the Singletons were not the real parties in interest when the action was commenced, or that the court erred in allowing in evidence a formal written assignment...
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