Opinion
34640.
DECIDED MAY 15, 1953. REHEARING DENIED MAY 27, 1953.
Action on contract. Before Judge Atkinson. Chatham Superior Court. March 27, 1953.
Myrick Myrick, for plaintiff in error.
Lawton Cunningham, John B. Miller, contra.
1. The petition stated a cause of action for breach of a contract of guaranty, and the trial court did not err in overruling the general demurrer thereto.
2. The special demurrers are treated as abandoned.
3. The assignment of error on the judgment striking the answer is premature and is not considered.
DECIDED MAY 15, 1953 — REHEARING DENIED MAY 27, 1953.
Liberty National Bank Trust Company of Savannah brought an action upon a contract of guaranty against G. E. deVries and Melvin T. Roberson, and alleged in its petition substantially the following: 2. Roberson and deVries are severally indebted to the plaintiff in the principal sum of $8,018.32 besides interest thereon at the rate of 7 percent per annum from September 15, 1952. 3. Beginning on or about January 14, 1949, the plaintiff made loans to G. E. deVries Trading Company, Inc., at the request of G. E. deVries and Melvin T. Roberson and upon the personal endorsement of the said Roberson. 4. Later G. E. deVries sought to borrow for the company on notes secured by warehouse receipts. The plaintiff declined to make such loans unless the notes were guaranteed by a responsible person. Thereupon on November 1, 1950, in order to secure additional credit for the company, the defendants, deVries and Roberson, individually and personally, contracted in writing with the plaintiff to guarantee the repayment by the G. E. deVries Trading Company, Inc., of 80 percent loans made by the plaintiff to the company on warehouse receipts, covering shipment and storage of glass. The alleged agreement, written on the stationery of the company, addressed to Liberty National Bank, and signed "G. E. deVries Trading Co., Inc., G. E. deVries, Melvin T. Roberson," provided: "In connection with your granting of 80 percent loans on warehouse receipts, covering shipments and storage of glass, to the above company, I hereby guarantee the fulfillment of these transactions in case of any difficulties." 5. In reliance upon and under the guaranty agreement, the plaintiff, on November 21, 1950, made the first of a series of loans to G. E. deVries Trading Company, Inc., secured by warehouse receipts for glass and guaranteed under the aforesaid guaranty agreement. As is the trade custom and practice, known to all parties, these loans were evidenced by notes and were renewed periodically with debits for additional loans and credits for payments. The series of loans was last renewed on May 1, 1952, to mature on June 23, 1952, evidenced by three promissory notes in the respective principal sums of $1,150.07, $3,313.02, and $3,348.32. The first two of these notes were secured by Savannah Bonded Warehouse receipts for glass, and the latter note was secured by a Georgia Ports Authority warehouse receipt for glass. Copies of these notes are attached to the petition and made a part thereof. The guarantors had notice of these loans and the fact that they were made in acceptance of and in reliance upon the guaranty agreement. 6. Upon maturity of the notes, the plaintiff made demand for payment upon G. E. deVries Trading Company, Inc., and upon refusal of the company to pay the notes, the plaintiff promptly gave notice of this refusal to both the defendants, deVries and Roberson, and made demand upon them to arrange for the corporation to pay the indebtedness. They both requested an additional extension of time within which to arrange for payment. 7. After repeated fruitless efforts by the plaintiff to obtain payment of the indebtedness from the company, the plaintiff made demand upon the defendants individually as guarantors. They refused to pay, and the plaintiff filed suit on the indebtedness against the company to the September term 1952 of the City Court of Savannah, and obtained judgment on the indebtedness for the principal sum of $7,743.01, interest of $211.20, and attorney's fees of $795.42. 8. In due course a fi. fa. was issued on the judgment and levied on the property of the company securing the notes. After due advertisement this property was exposed for sale and sold by the Sheriff of the City Court of Savannah, bringing a gross sum of $775. After costs of $43.69 were deducted, the net proceeds of $731.31 were paid over to the plaintiff. 9. The proceeds of the sheriff's sale reduced the original indebtedness to $8,018.32. On November 6, 1952, the Deputy Sheriff of the City Court of Savannah made due search for additional property of the company, and, finding none, made an entry of nulla bona on the fi. fa. 10. Thereupon, the plaintiff again demanded payment from the defendants but they have refused to pay.
The defendant Roberson filed his answer, together with amendments thereto, and general and special demurrers to the petition. His demurrers were overruled and he excepted.
The plaintiff filed demurrers to the defendant's answer, the trial court struck certain of his alleged affirmative defenses therefrom, and he again excepted.
1. It is alleged in the petition that, beginning in January 1949, the plaintiff bank made loans to G. E. deVries Trading Company, Inc., at the request of G. E. deVries and Melvin T. Roberson, and upon the personal endorsement of Roberson. Later G. E. deVries sought to borrow money for the company on notes of the company, secured by warehouse receipts, but the plaintiff bank refused to make such loans, unless the notes were guaranteed by a responsible person. Therefore, on November 1, 1950, in order to secure additional credit for the company, G. E. deVries and Roberson, individually and personally, contracted in writing to guarantee the repayment of such loans by writing the following letter to the bank on the stationery of the company: "In connection with your granting of 80 percent loans on warehouse receipts, covering shipments and storage of glass, to the above company, I hereby guarantee the fulfillment of these transactions in case of any difficulties." In reliance on the guaranty agreement, the plaintiff bank on November 21, 1950, made the first of a series of loans to the company, secured by warehouse receipts for glass. As is the trade custom and practice, known to all the parties, these loans were evidenced by notes and were renewed periodically with debits for additional loans and credits for payments. The defendants had notice of these loans and of the fact that they were made in acceptance of and in reliance on their contract of guaranty. Upon the maturity of the notes and the company's refusal to make payment, the defendant guarantors were notified and demand was made of them for payment. They refused to make payment, and the plaintiff bank, in a suit against the company on the notes, obtained judgment thereon. A fi. fa. was issued on the judgment and the property securing the notes was levied upon and sold. The proceeds from such sale were applied on the original indebtedness, but there still remained an unpaid balance due of $8,018.32. Due search was made by the deputy sheriff for additional property of the company and, finding none, he made an entry of nulla bona on the fi. fa. The plaintiff bank again made demand upon the guarantors for payment, and, upon their refusal to pay, entered the present suit against them.
Counsel for the defendant Roberson contends that the alleged guaranty is so vague, indefinite, and uncertain as to be incapable of enforcement; that, if the alleged guaranty meant anything, it was that the parties intended that the security should be exhausted before any attempt was made to have the company or the alleged guarantors pay anything, and the petition does not allege that the plaintiff bank had, with the assistance of the company, exhausted these securities; and the alleged guaranty is without consideration, for which reasons the trial court erred in overruling the general demurrer. We find ourselves unable to agree with any of these contentions.
The contract is not so vague, indefinite, and uncertain as to be incapable of enforcement. While it is true that, standing alone, the letter signed by deVries and Roberson is ambiguous, yet, viewed in the light of the attendant circumstances under which the letter was given, the intention of the parties is easily ascertainable. The bank had been making loans to the deVries Company. It refused to make any further loans unless a responsible guarantor was secured. Devries and Roberson chose to act as such guarantors, and in reply to the request wrote the letter to the bank. The loans were made upon the faith of the letter following the receipt of the letter by the bank. We think it is clear, therefore, that the import of the language in the letter is that, if the bank would make the loans, the guarantors, would see that the loans were fulfilled — that the loans were repaid. Under the circumstances under which the letter was written, it constituted a continuing guaranty of the loans as they were made after the receipt of the letter. On the question of the adequacy of the consideration, see Rawleigh Co. v. Salter, 31 Ga. App. 329 ( 120 S.E. 679), and citations. The trial court did not err in overruling the general demurrer to the petition.
2. The assignments of error on the judgment overruling the special demurrers to the petition are treated as abandoned, as they have not been argued orally or in the briefs, nor generally insisted upon.
3. "An assignment of error on a judgment striking an answer can not be made in a bill of exceptions assigning error on a judgment overruling a general demurrer to a petition. Wright v. Morris, 50 Ga. App. 196 (3) ( 77 S.E. 365)." Cooledge v. Casey, 58 Ga. App. 134, 137 (2) ( 198 S.E. 96); Fugazzi v. Tomlinson, 119 Ga. 622 ( 46 S.E. 831); Vanzant v. First National Bank, 164 Ga. 772 (2 a) ( 139 S.E. 537); Turner v. Camp, 110 Ga. 631 (2), 632 ( 36 S.E. 76); Cox v. Hardee, 135 Ga. 80 (5) ( 68 S.E. 932); Hooks v. Prince, 171 Ga. 688, 690 ( 156 S.E. 683); Ray v. Anderson, 117 Ga. 136 ( 43 S.E. 408). The judgment sustaining the plaintiff's demurrers to the defendant's answer and striking certain of his affirmative defenses will not, therefore, be reviewed by this court at this stage in the proceedings.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
ON MOTION FOR REHEARING.
Under the peculiar facts of the case, brought to our attention in the motion for rehearing, leave is granted to treat and consider as exceptions pendente lite the official copy of the bill of exceptions assigning error on the striking of the answer of the defendant.
Gardner, P. J., and Townsend, J., concur.