Thomasson v. Pineco, Inc.

• Decision Date: 12 March 1985
• Docket Number: No. 69211,69211
• Citation: 328 S.E.2d 410,173 Ga.App. 794
• Parties: THOMASSON v. PINECO, INC.
• Court: Georgia Court of Appeals

Page 410

328 S.E.2d 410

173 Ga.App. 794

THOMASSON v. PINECO, INC.

No. 69211.

Court of Appeals of Georgia.

March 12, 1985.

Paul L. Hanes, Atlanta, for appellant.

Tyron C. Elliott, Manchester, for appellee.

BEASLEY, Judge.

Pineco Inc. ("Pineco") brought an action alleging that defendant-appellant executed an "indemnity agreement" whereby he guaranteed payment to the plaintiff of all indebtedness of Reliable Pallet Company. Pineco set forth in its complaint that Reliable Pallet Company was indebted to Pineco in the specific amount of $24,357.11, "as shown on the invoices attached" and had refused all demands for payment. It asserted that appellant Thomasson, by reason of his indemnity agreement, is indebted to Pineco in the amount of the invoices, $24,357.11. In reply, Thomasson asserted the affirmative defense of partial failure of consideration, admitted that Reliable is indebted to Pineco "in some amount" and denied that he unconditionally and legally guaranteed payment to plaintiff. On motion for summary judgment, Pineco's President swore that Thomasson "ordered the material shown in the invoices identified as Exhibit B to the plaintiff's complaint."

After a hearing, the court granted the motion and entered judgment for the amount sought. Defendant appealed. Held:

Strictly speaking, "[i]n a contract of indemnity the indemnitor, for a consideration, promises to indemnify and save harmless the indemnitee against liability of the indemnitee to a third person, or against loss resulting from such liability. The contract of the indemnitor is an original undertaking ... An indemnity contract differs from a guaranty in that the former is an original rather than a collateral undertaking and generally undertakes to make good the promisee's loss resulting from his liability to another rather than from another's liability to him." National Bank of Monroe v. Wright, 77 Ga.App. 272, 275, 48 S.E.2d 306 (1948). See Rankin v. Smith, 113 Ga.App. 204, 207, 147 S.E.2d 649 (1966), wherein it was held: "Like the contract of suretyship, the contract of indemnity has as its purpose security of the promisee against loss. The great difference between the two lies in the character of the promisee. In suretyship the promise runs to an obligee or creditor, present or prospective. In indemnity the promise runs to an obligor or debtor present or prospective. In suretyship the promisee has or is about to extend credit to a third person, the principal, and the promise is made to protect the promisee creditor in case the principal fails to perform. In indemity, the promisee owes or is about to assume an obligation to a third person, the creditor, and the promisor agrees to save him harmless from a loss as a result of his assuming that obligation.' " Clearly, the instant agreement, although styled an "indemnity," is in the nature of a suretyship or guaranty. Since 1981 the distinction between contracts of suretyship and guaranty has been abolished. Ga.L.1981, p. 870.

"Generally a surety or guarantor may assert all defenses to a contract which would be available to his principal, with the exception of personal defenses, e.g., infancy, incapacity, bankruptcy, etc." Peterson v. Midas Realty Corp., 160 Ga.App. 333, 287 S.E.2d 61 (1981). Accord Vickers v. Chrysler Credit Corp., 158 Ga.App. 434, 436, 280 S.E.2d 842 (1981).

It should be observed that the defendant by affirmative defense alleged a partial failure of consideration. Formerly, in an unbroken line of cases it was held that where plaintiff was the movant, it was incumbent upon him to negate properly plead defenses, even conclusionary ones, "even to the extent of affirmatively proving a negative." Home Mart Bldg. Centers v. Jones, 133 Ga.App. 822, 212 S.E.2d 476 (1975). However, this line came to an abrupt halt and expired after our decision in Heimanson v. Meade, 140 Ga.App. 534, 536, 231 S.E.2d 373 (1976), which was reversed by the Supreme Court in Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977). There, although the defendant pleaded the affirmative defenses of failure to state a claim, total failure of consideration etc. and these defenses were not specifically refuted, that court pointed out as to the note in question there was no evidence that all legal requirements had not been complied with other than a bare allegation in the pleadings. The opinion then held that one opposing a motion must present the essence of his case or else suffer judgment against him. "[W]hen a motion for summary judgment is made and supported by evidence outside the pleadings, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial." (Emphasis supplied.) Meade, supra, p. 178, 236 S.E.2d 357. "The record before the trial court showed that the note was good. There was no evidence that all legal requirements had not been complied with, other than a bare allegation presented in a pleading." (Emphasis supplied.) Meade, p. 179, 236 S.E.2d 257. Thus, conclusionary affirmative defenses would be insufficient to withstand a motion. As we pointed out in a recent decision applying Meade, supra, "although it is permissible to allege defenses in a conclusory format, where a plaintiff files a motion to strike such defenses, or files a motion for summary judgment, and evidence is offered on the issue, if the plaintiff establishes a prima facie right to summary judgment, a defendant may not rest upon conclusory allegations or defenses in his pleadings, but must come forward with facts showing a genuine issue remains for trial." Bradley v. Tattnall Bank, 170 Ga.App. 821, 826, 318 S.E.2d 657 (1984).

An invoice is evidence of goods sold;...