White v. Chapman
| Decision Date | 08 May 1979 |
| Docket Number | No. 56895,56895 |
| Parties | WHITE v. CHAPMAN et al. |
| Court | Georgia Court of Appeals |
Arnall, Golden & Gregory, Charles L. Gregory, Atlanta, for appellant.
O'Callaghan, Saunders & Stumm, Richard L. Stumm, B. Lee Crawford, Jr., Atlanta, for appellees.
Appellant, William H. White d/b/a Southern Investment Company, a factoring company, entered into an agreement to purchase by assignment various contracts of Holloway Enterprises, Inc. When appellant did not receive the payment due on a particular contract which appellant had purchased by assignment, legal proceedings were instituted against Harold A. Dye and James G. Chapman, two former corporate officers of Holloway, on an alleged continuing guaranty contract executed individually by Dye and Chapman. At the close of all the evidence in the ensuing jury trial, the trial court granted Dye and Chapman's respective motions for directed verdict. This appeal is from the judgment entered on those verdicts.
1. The instrument under which appellant seeks to hold appellees liable is denominated "Unconditional Guaranty and Indemnification" and provides in pertinent part as follows:
Although denominated a "guaranty," the document is, as the trial court held, a surety agreement. See, e. g., Fagelson v. Pfister Aluminum Corp., 109 Ga.App. 663(1), 137 S.E.2d 313.
This "guaranty" was executed contemporaneously with a certain "Financing Agreement." The financing agreement between Harold Dye as president of Holloway Enterprises and appellant referred specifically to seven Holloway contracts then in effect and provided that in consideration of the assignment of the seven named contracts, appellant would pay Holloway a stated percentage of the money due under the contracts.
The trial court, construing the "Unconditional Guaranty and Indemnification" and "Financing Agreement" as one contract (see, e. g., Berger v. Mercantile Nat. Bank 231 Ga. 680, 203 S.E.2d 479, reversing holding in 129 Ga.App. 707(1), 200 S.E.2d 921), held that the alleged unconditional guaranty executed by appellees "was limited to any liability that may arise from the seven (7) contracts assigned in (the Financing Agreement); thus to make the sureties liable for any obligations arising out of contracts beyond the seven (7) assigned would be an increase of the risk of the sureties and an (unwarranted and impermissible) extension of the sureties liability by implication . . ."
The trial court further held that appellees could not be liable under the surety instrument for the debt in the instant case, because such debt did not involve any contract recited in the financing agreement. Appellant urges that the construction of the "Unconditional Guaranty" so as to limit its scope to the contracts listed in the financing agreement was in error. We, too, must take issue with the trial court's interpretation.
Even construing the documents as one contract, the language of the documents militates against a limiting construction. The financing agreement contemplated future assignments by conferring on Southern Investment Company the "right to set off (delinquent amounts owing from the seven assigned contracts) against payments due (Southern Investment Company) under any subsequent contract(s) assigned by it from (Holloway) . . ." The "Unconditional Guaranty" similarly contemplates future dealings. The surety agreement recites that "Holloway Enterprises, Inc. desires to sell certain contract(s) or accounts receivable From time to time to W. H. White d/b/a Southern Investment Company." (Emphasis supplied.) It further provides that the surety contract was "in consideration of Southern Investment Company purchasing by assignment certain contracts or receivables of Holloway Enterprises, Inc. in an amount not to exceed $100,000 At any given time . . ." (Emphasis supplied.) Therefore, we hold that the unconditional surety agreement embraced as a class any indebtedness arising by reason of subsequent purchases by assignment of contracts or receivables and was not limited in its scope to the seven contracts named in the financing agreement. As the contract is clear and unambiguous, no resort to rules of construction is necessary. Compare Beavers v. LeSueur, 188 Ga. 393(3), 3 S.E.2d 667, holding that a security deed for a note which applied to all other indebtedness would not cover an unliquidated claim for legal malpractice, as such a claim was not included in the class of liabilities for which the deed was given as security. If the surety contract was intended to restrict liability to...
To continue reading
Request your trial
-
Walter E. Heller & Co. v. Aetna Business Credit, Inc.
...guaranties may be cancelled 'in futuro only'. Haynie v. First National Bank, 117 Ga.App. 766 (162 S.E.2d 27); White v. Chapman, 149 Ga.App. 409 at 412 (254 S.E.2d 434). Accordingly, defendant Heller's Motion for Partial Summary Judgment is "The first issue which presents itself to the Court......
-
Johnson Drilling Co., Inc. v. Bank of the South, N.A.
...transactions, words to that effect should have been chosen. As written, it did not accomplish this. [Cit.]" White v. Chapman, 149 Ga.App. 409, 412, 254 S.E.2d 434 (1979). Thus, there was no need to require any other collateral as security for the promissory notes subsequently executed by th......
-
Buchanan v. Foxfire Fund, Inc., 57748
...would have been ineffective as to the executed parol license to use photographs of and interviews with appellant. White v. Chapman, 149 Ga.App. 409(2), 254 S.E.2d 434. The uncontradicted evidence in this case shows that the parol license was accepted in a manner consistent with the license ......
-
Lyle v. Southern Federal Sav. & Loan Ass'n of Atlanta
...language used by the parties is plain and unambiguous, the trial court erred in resorting to rules of construction. SeeWhite v. Chapman, 149 Ga.App. 409(1), 254 S.E.2d 434. 3. We must now determine whether the contract executed by the parties was usurious. At the time this loan was made, Co......