The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal, the principal in either instance remaining bound therefor. Sureties, including those formerly called guarantors, are jointly and severally liable with their principal unless the contract provides otherwise. There shall be no distinction between contracts of suretyship and guaranty.
(Orig. Code 1863, § 2125; Code 1868, § 2120; Code 1873, § 2148; Code 1882, § 2148; Civil Code 1895, § 2966; Civil Code 1910, § 3538; Code 1933, § 103-101; Ga. L. 1981, p. 870, § 1.)
Cross references.- Contract of guarantor on negotiable instrument, § 11-3-416.
Loan guaranties not state debt, § 20-3-269.
Law reviews.- For article contrasting guaranty with suretyship in Georgia, see 2 Ga. B. J. 25 (1939). For article, "The Distinction Between Guaranty and Suretyship in Georgia," see 9 Ga. B. J. 273 (1947). For article surveying developments in Georgia commercial law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 33 (1981). For survey article citing developments in Georgia contracts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 67 (1981). For annual survey of law of business associations, see 38 Mercer L. Rev. 57 (1986). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For comment discussing distinction between guaranty and suretyship, in light of McCallum v. Griffin, 289 F.2d 135 (5th Cir. 1961), see 24 Ga. B. J. 273 (1961). For comment, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Comment: Confirming the Enforceability of the Guaranty Agreement After Non-Judicial Foreclosure in Georgia," see 65 Mercer L. Rev. 1167 (2014).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- Prior to 1981, this section was but a codification of the common law. McIntyre v. Moore, 105 Ga. 112, 31 S.E. 144 (1898); Musgrove v. Luther Publishing Co., 5 Ga. App. 279, 63 S.E. 52 (1908). The language used in it in defining the obligation of a surety was almost exactly the language of the English textbooks. Phillips v. Solomon, 42 Ga. 192, 519 (1871). However, Ga. L. 1981, p. 870, § 1, amends this section to abolish the distinction between contracts of suretyship and guaranty. Balboa Ins. Co. v. A.J. Kellos Constr. Co., 247 Ga. 393, 276 S.E.2d 599 (1981). The distinction formerly expressly made by this section was that a contract of suretyship "differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor." Many cases applied this distinction. See, for example, Wright v. Shorter, 56 Ga. 72 (1876); Manry v. Waxelbaum Co., 108 Ga. 14, 33 S.E. 701 (1899); Fields v. Willis, 123 Ga. 272, 51 S.E. 280 (1905), later appeal, 132 Ga. 242, 63 S.E. 828 (1909); Maril v. Boswell, 12 Ga. App. 41, 76 S.E. 773 (1912); Tennille Banking Co. v. Ward, 29 Ga. App. 660, 116 S.E. 347 (1923); Etheridge v. Rawleigh Co., 29 Ga. App. 698, 116 S.E. 903 (1923); Brock Candy Co. v. Craton, 33 Ga. App. 690, 127 S.E. 619 (1925), later appeal, 37 Ga. App. 728, 141 S.E. 916 (1928); Wilson Bros. v. Heard, 46 Ga. App. 497, 167 S.E. 913 (1933); Brilliant Coal Co. v. Gandy, 51 Ga. App. 264, 180 S.E. 379 (1935); Singleton v. Farmers & Merchants Bank, 55 Ga. App. 776, 191 S.E. 478 (1937); Durham v. Greenwold, 188 Ga. 165, 3 S.E.2d 585 (1939); W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514, 1 S.E.2d 609 (1939); Cartwright v. Farmers Bank, 74 Ga. App. 847, 41 S.E.2d 818 (1947); National Bank v. Wright, 77 Ga. App. 272, 48 S.E.2d 306 (1948); Bearden v. Ebcap Supply Co., 108 Ga. App. 375, 133 S.E.2d 62 (1963); Fagelson v. Pfister Aluminum Corp., 109 Ga. App. 663, 137 S.E.2d 313 (1964), commented on in 1 Ga. St. B.J. 523 (1965); National Acceptance Co. v. Fulton Nat'l Bank, 113 Ga. App. 517, 148 S.E.2d 907, rev'd on other grounds sub nom. Wolkin v. National Acceptance Co., 222 Ga. 487, 150 S.E.2d 831 (1966); Decatur Coca-Cola Bottling Co. v. Variety Vending Corp., 277 F. Supp. 393 (N.D. Ga. 1967); Travelers Indem. Co. v. Sasser & Co., 138 Ga. App. 361, 226 S.E.2d 121 (1976); Brock Constr. Co. v. Houston Gen. Ins. Co., 144 Ga. App. 860, 243 S.E.2d 83, aff'd, 241 Ga. 460, 246 S.E.2d 316 (1978); Jackson v. First Bank, 150 Ga. App. 182, 256 S.E.2d 923 (1979); Griswold v. Wells Aluminum, Moultrie, Inc., 156 Ga. App. 19, 274 S.E.2d 7 (1980); Balboa Ins. Co. v. A.J. Kellos Constr. Co., 247 Ga. 393, 276 S.E.2d 599 (1981). However, this was only one of the tests to distinguish a contract of suretyship from a contract of guaranty. Schlittler & Johnson v. Deering Harvester Co., 3 Ga. App. 86, 59 S.E. 342 (1907); McKibben v. Luther Williams Banking Co., 32 Ga. App. 419, 123 S.E. 726 (1924); Guaranty Mtg. Co. v. National Life Ins. Co., 55 Ga. App. 104, 189 S.E. 603 (1936), aff'd, 184 Ga. 644, 192 S.E. 298 (1937).
The test formerly laid down in this section was not decisive. As with other contracts, the whole matter was governed by the intention of the parties. For instance, in the usual indemnity contracts, the parties generally intended that the indemnitor should be surety, although the indemnitor received an independent consideration. And again, sometimes a contract would be construed to be one of guaranty although the guarantor received no consideration other than the benefit flowing to the guarantor's principal. Baggs v. Funderburke, 11 Ga. App. 173, 74 S.E. 937 (1912); Rawleigh Co. v. Salter, 31 Ga. App. 329, 120 S.E. 679 (1923); McKibben v. Luther Williams Banking Co., 32 Ga. App. 419, 123 S.E. 726 (1924); Whitley v. Powell, 47 Ga. App. 105, 169 S.E. 766 (1933); Brilliant Coal Co. v. Gandy, 51 Ga. App. 264, 180 S.E. 379 (1935); General Finance Corp. v. Welborn, 98 Ga. App. 280, 105 S.E.2d 386 (1958); McCallum v. Griffin, 289 F.2d 135 (5th Cir. 1961), commented on in 24 Ga. B.J. 273 (1961); National Acceptance Co. v. Fulton Nat'l Bank, 113 Ga. App. 517, 148 S.E.2d 907, rev'd on other grounds sub nom. Wolkin v. National Acceptance Co., 222 Ga. 487, 150 S.E.2d 831 (1966); Scarboro v. Universal C.I.T. Credit Corp., 364 F.2d 10 (5th Cir. 1966); Dunlap v. Citizens & S. DeKalb Bank, 134 Ga. App. 893, 216 S.E.2d 651 (1975). The fundamental distinction between a contract of guaranty and one of suretyship was said to be that in a contract of suretyship the person obligating himself to pay the debt of another was primarily, and not merely secondarily, liable for its payment. Watkins Medical Co. v. Marbach, 20 Ga. App. 691, 93 S.E. 270 (1917); Hartsfield Co. v. Robertson, 48 Ga. App. 735, 173 S.E. 201 (1934); Hartsfield Co. v. Hamil, 180 Ga. 615, 180 S.E. 128 (1935); Brilliant Coal Co. v. Gandy, 51 Ga. App. 264, 180 S.E. 379 (1935); Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 25, 16 S.E.2d 909 (1941); Erbelding v. Noland Co., 83 Ga. App. 464, 64 S.E.2d 218 (1951); Nichols v. Miller, 91 Ga. App. 99, 84 S.E.2d 841 (1954); Ferguson v. Atlanta Newspapers, Inc., 91 Ga. App. 115, 85 S.E.2d 72 (1954); Continental Cas. Co. v. White, 160 F. Supp. 611 (M.D. Ga. 1957); General Fin. Corp. v. Welborn, 98 Ga. App. 280, 105 S.E.2d 386 (1958); McCallum v. Griffin, 289 F.2d 135 (5th Cir. 1961), commented on in 24 Ga. B.J. 273 (1961); Fagelson v. Pfister Aluminum Corp., 109 Ga. App. 663, 137 S.E.2d 313 (1964), commented on in 1 Ga. St. B.J. 523 (1965); Rankin v. Smith, 113 Ga. App. 204, 147 S.E.2d 649 (1966); National Acceptance Co. v. Fulton Nat'l Bank, 113 Ga. App. 517, 148 S.E.2d 907, rev'd on other grounds sub nom. Wolkin v. National Acceptance Co., 222 Ga. 487, 150 S.E.2d 831 (1966); Kennedy v. Thruway Serv. City, Inc., 133 Ga. App. 858, 212 S.E.2d 492 (1975); Oliver v. Citizens DeKalb Bank, 150 Ga. App. 437, 258 S.E.2d 204 (1979). While a surety rendered himself primarily responsible with the principal debtor and on the same undertaking, a guarantor became collaterally responsible by virtue of the guarantor's own separate and independent obligation, whereby, without joining in the principal's undertaking, the guarantor yet vouched for the principal's solvency by guaranteeing that the principal would be able to perform as the principal had agreed. Rawleigh Co. v. Salter, 31 Ga. App. 329, 120 S.E. 679 (1923); Hartsfield Co. v. Robertson, 48 Ga. App. 735, 173 S.E. 201 (1934); Hartsfield Co. v. Hamil, 180 Ga. 615, 180 S.E. 128 (1935); Guaranty Mtg. Co. v. National Life Ins. Co., 55 Ga. App. 104, 189 S.E. 603 (1936), aff'd, 184 Ga. 644, 192 S.E. 298 (1937); Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 25, 16 S.E.2d 909 (1941); W.T. Rawleigh Co. v. Overstreet, 71 Ga. App. 873, 32 S.E.2d 574 (1944); Fagelson v. Pfister Aluminum Corp., 109 Ga. App. 663, 137 S.E.2d 313 (1964), commented on in 1 Ga. St. B.J. 523 (1965); Wolkin v. National Acceptance Co., 222 Ga. 487, 150 S.E.2d 831 (1966); Griswold v. Wells Aluminum, Moultrie, Inc., 156 Ga. App. 19, 274 S.E.2d 7 (1980). Hence, it was held that waiver of presentment, protest, and notice of nonpayment of any note or other evidence of indebtedness accepted by a promisee from the principal was evidence of suretyship, as it indicated assumption of a primary, rather than secondary, obligation to pay the debt. The 1981 amendment also inserted the provision that "sureties, including those formerly called guarantors, are jointly and severally liable with their principals unless the contract provides otherwise."
Many of the cases cited below construed or applied this section as it existed prior to the 1981 amendment.
Section reasonably construed.
- This section must be given a reasonable and not an unreasonable construction. Tennille Banking Co. v. Ward, 29 Ga. App. 660, 116 S.E. 347 (1923).
Distinction between suretyship and guaranty has been eliminated. Johns v. Leaseway of Ga., Inc., 166 Ga. App. 472, 304 S.E.2d 555 (1983); Daprano v. Sherwin-Williams Co., 166 Ga. App. 811, 305 S.E.2d 655 (1983).
"Indemnity contract" is defined as an agreement between two parties, whereby the one party, the indemnitor, either agrees to indemnify and save harmless the other party, the indemnitee, from loss or damage, or binds the indemnitor to do some particular act or thing, or to protect the indemnitee against liability to, or the claim of, a third party. "Indemnity" means reimbursement, restitution, or compensation. National Bank v. Wright, 77 Ga. App. 272, 48 S.E.2d 306 (1948).
In 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. National Bank v. Wright, 77 Ga. App. 272, 48 S.E.2d 306 (1948).
Trial court properly awarded damages jointly and severally against an individual representing an electrical contractor because the individual was charged with knowledge of the signature provision, whether read or not, and no violation of the statute of frauds existed because the signature provision was an assumption of the obligations under the contract or indemnity provision, not a guaranty; thus, the individual was a principal under the contract, not a guarantor. Progressive Elec. Servs. v. Task Force Construction, Inc., 327 Ga. App. 608, 760 S.E.2d 621 (2014).
Contracts of surety and indemnity compared.
- Difference between a contract of surety and a contract of indemnity 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 indemnity, the promisee owes or is about to assume an obligation to a third person, the creditor, and the promisor agrees to save the promisee harmless from a loss as a result of assuming that obligation. Rankin v. Smith, 113 Ga. App. 204, 147 S.E.2d 649 (1966).
Suretyship and fidelity insurance distinguished.
- There is a well-recognized difference between a contract of suretyship and one of fidelity insurance. John Church Co. v. Aetna Indem. Co., 13 Ga. App. 826, 80 S.E. 1093 (1913).
Insurance law not applicable to suretyship contract.
- Insurance law was not applicable in a case involving liability under a suretyship contract; thus, O.C.G.A. § 33-24-7 did not apply to excuse a surety from liability based on fraud of the principal. American Mfg. Mut. Ins. Co. v. Tison Hog Mkt., Inc., 182 F.3d 1284 (11th Cir. 1999), cert. denied, 531 U.S. 819, 121 S. Ct. 59, 148 L. Ed. 2d 26 (2000).
Difference between guarantee of loan and guarantee of negotiable instrument.
- There is a difference between an undertaking which guarantees a loan and one which guarantees the payment of a negotiable instrument; the former covers the debt; the latter the evidence thereof. Sulter v. Citizens Bank & Trust Co., 51 Ga. App. 798, 181 S.E. 694 (1935).
Principal and surety are joint and several obligors.
- If an obligation, joint in form, is executed by one party as principal and another as surety, they were to be deemed joint and several obligors since by former Code 1933, § 107-102 the obligation of the surety was an accessory to that of the principal. Smith v. Moore, 45 Ga. App. 708, 165 S.E. 765 (1932).
Liability of principal is essence of suretyship.
- Very essence of a contract of suretyship is that there should be someone liable as principal. This necessarily contemplates that when a note is given to purchase a store and goods, there must be at least two parties who signed the note and are liable for the payment thereof, the principal and the surety. Where only one person signed the note sued on, that person must necessarily be the principal. Jordan v. Douglas Grocery Co., 27 Ga. App. 296, 108 S.E. 139 (1921); Saxon v. National City Bank, 169 Ga. 784, 151 S.E. 501 (1930); Boles v. Hartsfield Co., 50 Ga. App. 442, 178 S.E. 416 (1935); Meeks v. Withers, 181 Ga. 787, 184 S.E. 604 (1937); Magid v. Beaver, 56 Ga. App. 286, 192 S.E. 532 (1937), rev'd on other grounds, 185 Ga. 669, 196 S.E. 422 (1938).
Nature of liability established by guaranty terms.
- Generally, a guarantor or surety is primarily liable along with the guarantor's principal to pay the debt; however, the true nature of the guarantor's liability is established by the terms of the guaranty, which may render the guarantor only secondarily liable on the principal's inability to pay, or otherwise condition or limit liability in any number of ways. Holland v. Holland Heating & Air Conditioning, 208 Ga. App. 794, 432 S.E.2d 238 (1993).
Verdict for principal extinguishes surety's liability.
- Verdict in favor of the principal, on the principal's defense of failure of consideration, extinguishes ipso facto the obligation of the sureties. Schlittler & Johnson v. Deering Harvester Co., 3 Ga. App. 86, 59 S.E. 342 (1907).
Illegality of consideration to principal is defense to surety.
- If a note was executed by one as principal and by another as surety and the consideration therefor was illegal and immoral, but this fact was unknown to the surety at the time of the execution and delivery of the note, the surety may nevertheless defend a suit thereon by showing that the note was in fact executed by the principal for such a consideration. William-Hester Marble Co. v. Walton, 22 Ga. App. 433, 96 S.E. 269 (1918).
Duress of principal.
- If the principal signed the obligation sought to be enforced under such duress as would release the principal from liability thereon, the duress of the principal is an available defense for the surety, if the principal signed without knowledge of the defense. Patterson v. Gibson, 81 Ga. 802, 10 S.E. 9, 12 Am. St. R. 356 (1888).
If purported principal not bound, promissor is principal and not surety.
- It is essential that there be a principal, and if a person undertakes that another will pay or perform, there not being any legal liability on the part of such person to pay or perform, the promissor is the principal and not a surety. Saxon v. National City Bank, 169 Ga. 784, 151 S.E. 501 (1930).
Contract of suretyship does not depend on form.
- Under this section, a contract, whatever the contract's form, by which one obligates oneself to pay the debt of another in consideration of credit or indulgence or other benefit given to one's principal, the principal remaining bound for the debt, is a contract of suretyship. Buck v. Bank of Ga., 104 Ga. 660, 30 S.E. 872 (1898).
Form of the contract is immaterial, provided the fact of suretyship exists, and one may assume that relation even by an instrument separate and distinct from that of one's principal and also subsequent in time. Kennedy v. Thruway Serv. City, Inc., 133 Ga. App. 858, 212 S.E.2d 492 (1975).
No written instrument between creditor and surety required.
- Fact that written instrument may not have been executed between the creditor and the alleged surety does not preclude the existence of a suretyship. Griswold v. Wells Aluminum, Moultrie, Inc., 156 Ga. App. 19, 274 S.E.2d 7 (1980).
Whether one is principal or surety determined by facts.
- Whether one signs a note with another as joint principal maker or as surety merely is a question to be determined by the facts and not by the opinion that either party to the contract may entertain. Williams v. Peoples Bank, 9 Ga. App. 714, 72 S.E. 177 (1911).
Facts, not statements, control.
- Real character of the instrument must be determined by the facts, not by the statement of the payee that the defendant did sign as principal and not as surety nor by the defendant's statement that the defendant understood the plaintiff signed as principal and not as surety. McDaniel v. Akridge, 5 Ga. App. 208, 62 S.E. 1010 (1908), later appeal, 12 Ga. App. 79, 76 S.E. 755 (1912).
Purchase subject to lien does not create suretyship.
- Implied promise of suretyship with the incident rights of a surety to discharge does not arise when a purchase is made merely subject to the outstanding lien of a mortgage. Nelson v. National Life & Accident Ins. Co., 51 Ga. App. 684, 181 S.E. 202 (1935).
Retiring partner as surety.
- When a partnership is dissolved by the retirement of one of the partners and the continuing partner agrees to assume the debts of the firm, the retiring partner becomes a surety for the copartner. Stapler v. Anderson, 177 Ga. 434, 170 S.E. 498, answer conformed to, 47 Ga. App. 379, 170 S.E. 501 (1933).
Drawer of bill of exchange as surety.
- Contract of one who draws a domestic bill of exchange is that if the drawee does not accept, the drawer will pay, and if the drawee does not pay after acceptance, the drawer will. After acceptance, the contract of the drawer is one of suretyship. Tennille Banking Co. v. Ward, 29 Ga. App. 660, 116 S.E. 347 (1923). See O.C.G.A. § 11-3-413.
Endorser held principal, not surety.
- When four people owning equal undivided interests in property situated in Alabama executed in that state an instrument in writing purporting to convey such property, in trust for themselves, to a named corporation of that state as trustee, and providing for the appointment of a board of advisors to govern the estate, consisting of one representative for each of the four undivided shares and one representative of the trustee, each such member of the board to have one vote accordingly, but under the terms of the agreement the grantors reserved unto themselves or their assigns as beneficiaries the power to remove their representatives and fill vacancies, and the further power to remove the trustee through such representatives, and when the designated trustee was a bank, and before the execution of such instrument had loaned money to the grantors as individuals, and after its execution advanced additional money to itself as trustee for the benefit of the estate, and finally as trustee signed a note payable to itself for the entire indebtedness, in view of the control reserved to the beneficiaries by the trust agreement, the entity created, if any, was in the nature of a partnership, with the trustee as its agent, and endorsement by the beneficiaries of the note amounted to a ratification of the trustee's action, rendering the endorsers liable as principals, so that endorsement by one of the beneficiaries did not create the relation of surety within the meaning of the law of this state. National City Bank v. First Nat'l Bank, 193 Ga. 477, 19 S.E.2d 19 (1942).
Set-off not guaranty.
- Setoff provision was not a guaranty nor created an obligation for the appellant to answer for the appellant's son's debt. Yates v. Trust Co. Bank, 212 Ga. App. 438, 443 S.E.2d 293 (1994).
Persons who sign on the back of a note made by one party to another, or order, are liable as sureties or joint promisors, and the mere limitation in the term "endorser" written after the name of such a signer would not change the real status, if as a matter of fact the endorsement was to add strength to the paper and not to negotiate title. Burkhalter v. Conley, 24 Ga. App. 256, 100 S.E. 725 (1919) (judgment of superior court judge).
When two people sign a note apparently as joint principals and there is nothing in the face of the note to indicate that one is principal and the other is surety, the law presumes that both are principals. This presumption is rebuttable, of course, but the burden is on those asserting suretyship to establish suretyship. United States v. Frost, 149 F. Supp. 386 (M.D. Ga. 1957).
Cosurety may become such without knowledge of other sureties.
- If an apparent accommodation endorser knew other apparent makers were sureties and intended to become surety for principal maker, the endorser and the other sureties were cosureties, though they signed at different times and the others had no knowledge or expectation that the endorser would become surety. Taff v. Larey, 29 Ga. App. 631, 116 S.E. 866 (1923).
Cosureties who had set forth in different instruments their separate promises to pay the debt of their principal were not joint contractors or obligors, and one cosurety was not a necessary party in a creditor's action against the other cosurety to recover a debt. Floyd Davis Sales, Inc. v. Central Mtg. Corp., 197 Ga. App. 532, 398 S.E.2d 820 (1990).
Suretyship is not valid as to creditor until creditor assents.
- When the grantee of property under a mortgage assumes and agrees with the mortgagor to pay the mortgage, the grantee becomes, as to the mortgagor with whom the grantee thus contracts, the principal debtor, with the result that the mortgagor thereafter occupies the position of surety; but the mortgagee is not bound by such an agreement unless one personally assents to such express assumption. Nelson v. National Life & Accident Ins. Co., 51 Ga. App. 684, 181 S.E. 202 (1935).
When B conveys lands to C in consideration of the assumption by C of the obligation due to A, the relationship between B and C is that of principal and surety, but so far as A is concerned, such relationship between B and C is not effective as to A unless A assents to and accepts the relationship. Federal Land Bank v. Conger, 55 Ga. App. 11, 189 S.E. 567 (1936).
Waiver of confirmation of foreclosure sale.
- When a buyer of foreclosed properties bought the properties for less than the amounts owed, but the buyer's efforts at confirmation of the sales failed, the buyer was nevertheless entitled to pursue the guarantors of the notes on the properties for the deficiency because the guarantors had waived "any and all rights or defenses based on suretyship," and the confirmation defense under O.C.G.A. § 44-14-161(a) was based on suretyship. York v. RES-GA LJY, LLC, 336 Ga. App. 253, 784 S.E.2d 96 (2016).
Effect of death of guarantor.
- Death of a guarantor and knowledge or notice of such death to the guarantee revokes the guaranty as to future transactions, when the guaranty is a continuing one based on a divisible consideration, if the contract of guaranty itself does not express a contrary intention. Sulter v. Citizens Bank & Trust Co., 51 Ga. App. 798, 181 S.E. 694 (1935).
Surety is liable for judgment against principal without being party.
- When a surety is bound under a materialman's bond to pay a claim against the principal, the surety is liable for a judgment rendered against the defendant principal even though the surety was not a party in the prior case. Travelers Indem. Co. v. Sasser & Co., 138 Ga. App. 361, 226 S.E.2d 121 (1976).
Surety is not obligated to furnish additional collateral.
- Contract being one of suretyship only, accessory to that of the principal and limited to the principal's obligation to pay the principal's debt, a bank had no legal right to demand of the surety additional collateral provided for in the instrument, and it was therefore unnecessary for it to do so as a condition precedent to declaring the note due. Chandler v. Bank of Waynesboro, 29 Ga. App. 5, 113 S.E. 25 (1922).
Surety or guarantor may consent in advance to conduct which would otherwise result in surety's discharge. Bobbitt v. Firestone Tire & Rubber Co., 158 Ga. App. 580, 281 S.E.2d 324 (1981).
Agent guarantying payment jointly and severally liable on account.- Authorized agent is generally not personally liable on contracts which the agent enters into on behalf of the disclosed principal, but an agent may become a party to a contract either by the term of the agreement or by implication based on the surrounding facts and circumstances. One guarantying payment is jointly and severally liable on an account, notwithstanding the fact that one is acting as an agent for a disclosed principal. TBS, Inc. v. Sanyo Elec., Inc., 33 Bankr. 996 (N.D. Ga. 1983), aff'd sub nom. TBS v. Rubin, 742 F.2d 1465 (11th Cir. 1984).
Corporation was not a surety on a note since the corporation's name did not appear on the face of the note and the debt was paid by the corporation to protect a co-maker's credit and not to protect any interest or right of the corporation. Levinson v. American Thermex, Inc., 196 Ga. App. 291, 396 S.E.2d 252 (1990).
Co-debtor was not a surety of a debtor within the meaning of O.C.G.A. §§ 10-7-1,10-7-45, and10-7-57 as: (1) the note was executed so that both parties could buy a tract of land; (2) both parties received an equal benefit; (3) the debtor was solely liable for that portion of the loan that represented the payout of the previous mortgage on the debtor's property, and both parties were required to put up property in addition to the land they bought with the borrowed money; and (4) there was nothing in the agreement showing any intent by the parties that one was signing as the principal debtor and the other was signing as a surety. Johnson v. AgSouth Farm Credit, 267 Ga. App. 567, 600 S.E.2d 664 (2004).
Knowledge of endorser's signing as accommodation party.
- Even assuming that a creditor was aware that the president of a corporation co-signed a note as a guarantor to accommodate the corporation, knowledge that the president signed as an accommodation party to guarantee the note would not relieve the president of the joint and several liability the president assumed under the terms of the note. Hassell v. First Nat'l Bank, 218 Ga. App. 231, 461 S.E.2d 245 (1995).
When a tenant which terminated the tenant's lease early and agreed to pay the landlord the difference between the tenant's rental obligation and rent the landlord was able to obtain from a third party the tenant said this agreement was a guaranty from which the tenant had been discharged, the landlord was entitled to partial summary judgment on the landlord's breach of contract claim in the landlord's suit to enforce the agreement, because the agreement was not a guaranty subject to the discharge provisions of O.C.G.A. § 10-7-20 et seq., as the tenant did not agree to be answerable for the debt of another but, instead, agreed to continue the tenant's rental obligation to the landlord, subject to any credit the tenant might be entitled to for rent the landlord received from a third party. Equifax, Inc. v. 1600 Peachtree, L.L.C., 268 Ga. App. 186, 601 S.E.2d 519 (2004).
Contract of idemnity and not guaranty.
- Document signed by individual owners of a masonry business in support of the business's application for a performance bond on a construction project was a contract of indemnity and not a guaranty, and the document did not fall within the statute of frauds, O.C.G.A. § 13-5-30(2); summary judgment for the bond issuer should have been granted. Auto-Owners Ins. Co. v. CW Masonry, Inc., 350 Ga. App. 401, 829 S.E.2d 443 (2019).
Cited in Phillips v. Solomon, 42 Ga. 192 (1871); Wright v. Shorter, 56 Ga. 72 (1876); Allen v. Richardson, 74 Ga. 719 (1885); McIntyre v. Moore, 105 Ga. 112, 31 S.E. 144 (1898); Manry v. Waxelbaum Co., 108 Ga. 14, 33 S.E. 701 (1899); Fields v. Willis, 123 Ga. 272, 51 S.E. 280 (1905); Maril v. Boswell, 12 Ga. App. 41, 76 S.E. 773 (1912); Burkhalter v. Conley, 24 Ga. App. 256, 100 S.E. 725 (1919); W.T. Rawleigh Co. v. Salter, 31 Ga. App. 329, 120 S.E. 679 (1923); McKibben v. Luther Williams Banking Co., 32 Ga. App. 419, 123 S.E. 726 (1924); Erwin v. Brooke, 159 Ga. 683, 126 S.E. 777 (1925); Brock Candy Co. v. Craton, 33 Ga. App. 690, 127 S.E. 619 (1925); Electric City Brick Co. v. Hagler, 168 Ga. 836, 149 S.E. 126 (1929); Wilson Bros. v. Heard, 46 Ga. App. 497, 167 S.E. 913 (1933); Whitley v. Powell, 47 Ga. App. 105, 169 S.E. 766 (1933); Dickerson v. Universal Credit Co., 47 Ga. App. 512, 170 S.E. 822 (1933); Hartsfield Co. v. Robertson, 48 Ga. App. 735, 173 S.E. 201 (1934); Hartsfield Co. v. Hamil, 180 Ga. 615, 180 S.E. 128 (1935); Guaranty Mtg. Co. v. National Life Ins. Co., 55 Ga. App. 104, 189 S.E. 603 (1936); Singleton v. F & M Bank, 55 Ga. App. 776, 191 S.E. 478 (1937); Borders v. Gladney, 60 Ga. App. 692, 4 S.E.2d 736 (1939); Greenwold Grift Co. v. Durham, 191 Ga. 586, 13 S.E.2d 346 (1941); Cartwright v. Farmers Bank, 74 Ga. App. 847, 41 S.E.2d 818 (1947); Peerless Cas. Co. v. Housing Auth., 228 F.2d 376 (5th Cir. 1955); Continental Cas. Co. v. White, 160 F. Supp. 611 (M.D. Ga. 1957); General Fin. Corp. v. Welborn, 98 Ga. App. 280, 105 S.E.2d 386 (1958); Hammond v. Southern Cotton Oil Co., 101 Ga. App. 368, 114 S.E.2d 54 (1960); Goodyear Tire & Rubber Co. v. New Amsterdam Cas. Co., 101 Ga. App. 577, 114 S.E.2d 546 (1960); McCallum v. Griffin, 289 F.2d 135 (5th Cir. 1961); National Acceptance Co. v. Fulton Nat'l Bank, 113 Ga. App. 517, 148 S.E.2d 907 (1966); Scarboro v. Universal C.I.T. Credit Corp., 364 F.2d 10 (5th Cir. 1966); Fruehauf Corp. v. McIntire, 408 F.2d 910 (5th Cir. 1969); Parker v. Puckett, 129 Ga. App. 265, 199 S.E.2d 343 (1973); Farmer v. Peoples Am. Bank, 132 Ga. App. 751, 209 S.E.2d 80 (1974); Hurst v. Stith Equip. Co., 133 Ga. App. 374, 210 S.E.2d 851 (1974); Dunlap v. Citizens & S. DeKalb Bank, 134 Ga. App. 893, 216 S.E.2d 651 (1975); Yancey Bros. Co. v. Sure Quality Framing Contractors, 135 Ga. App. 465, 218 S.E.2d 142 (1975); Friedland v. Citizens & S. S. DeKalb Bank, 135 Ga. App. 591, 218 S.E.2d 302 (1975); Graves Refrigeration, Inc. v. Haswell, 137 Ga. App. 515, 224 S.E.2d 494 (1976); Travelers Indem. Co. v. Sasser & Co., 138 Ga. App. 361, 226 S.E.2d 121 (1976); American Druggist Ins. Co. v. Georgia Power Co., 145 Ga. App. 104, 243 S.E.2d 319 (1978); McGraw Edison Credit Corp. v. Motorola Communications & Elecs., Inc., 579 F.2d 885 (5th Cir. 1978); Balboa Ins. Co. v. A.J. Kellos Constr. Co., 247 Ga. 393, 276 S.E.2d 599 (1981); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981); Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587, 281 S.E.2d 332 (1981); Scales v. Alterman Foods, Inc., 159 Ga. App. 700, 285 S.E.2d 39 (1981); White v. Phillips, 679 F.2d 373 (5th Cir. 1982); Growth Properties of Fla., Ltd. v. Wallace, 168 Ga. App. 893, 310 S.E.2d 715 (1983); Ford Motor Credit Co. v. Sullivan, 170 Ga. App. 718, 318 S.E.2d 188 (1984); Seay's Home Furnishings, Inc. v. Dozier Home Bldrs., Inc., 176 Ga. App. 660, 337 S.E.2d 440 (1985); Fidelity & Deposit Co. v. West Point Constr. Co., 178 Ga. App. 578, 344 S.E.2d 268 (1986); Virgil v. Kapplin, 187 Ga. App. 206, 369 S.E.2d 808 (1988); Charania v. Ramada Inns, Inc., 192 Ga. App. 1, 383 S.E.2d 603 (1989); Davis v. Concord Com. Corp., 209 Ga. App. 595, 434 S.E.2d 571 (1993); Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 483 S.E.2d 888 (1997); Steiner v. Handler, 229 Ga. App. 833, 495 S.E.2d 132 (1998); Shah v. Taco Del Sur, Inc., 257 Ga. App. 224, 570 S.E.2d 654 (2002); Beasley v. Wachovia Bank, 277 Ga. App. 698, 627 S.E.2d 417 (2006); Thomas-Sears v. Morris, 278 Ga. App. 152, 628 S.E.2d 241 (2006); General Steel, Inc. v. Delta Bldg. Sys., 297 Ga. App. 136, 676 S.E.2d 451 (2009).
Consideration for Obligation
Consideration for a guarantor's signature is the extension of credit to guarantor's principal. Griswold v. Whetsell, 157 Ga. App. 800, 278 S.E.2d 753 (1981); Beard v. McDowell, 174 Ga. App. 793, 331 S.E.2d 104 (1985).
"Benefit" means more than nominal benefit.
- Word "benefit," as used in this section, means some real and substantial, and not a mere nominal, benefit. Tennille Banking Co. v. Ward, 29 Ga. App. 660, 116 S.E. 347 (1923).
Benefit to guarantor need not be direct.
- If there is a consideration for the promise of the guarantor, it is immaterial whether or not the guarantor personally gets any immediate and direct benefit therefrom. Musgrove v. Luther Publishing Co., 5 Ga. App. 279, 63 S.E. 52 (1908).
Generally, consideration to guarantor is new or independent.
- As a general proposition, a contract of guaranty must be expected to be founded on some new or independent consideration flowing directly to the guarantor. Etheridge v. Rawleigh Co., 29 Ga. App. 698, 116 S.E. 903 (1923).
Contract of guaranty exists if one lends one's credit for the benefit of another, but under an obligation which is separate and distinct from that of the principal debtor, by which one renders oneself secondarily or collaterally liable on account of any inability of the principal to perform one's own contract, and is supported either as an original undertaking to guarantee satisfaction for benefits to be subsequently extended to the principal or is based upon an independent consideration flowing directly to the guarantor. Except as indicated, a contract of guaranty must be expected to be founded on some new or independent consideration flowing directly to the guarantor. Durham v. Greenwold, 188 Ga. 165, 3 S.E.2d 585 (1939).
Contract of guaranty, whether entered into on the same or another instrument as that of the original obligation, whether executed at the same or a different time, and whether or not purporting to be the separate obligation of the signer, must, to be enforceable, show a consideration flowing directly to the guarantor. This is because it is a separate contract, and any contract, to be enforceable, must have a consideration. Bearden v. Ebcap Supply Co., 108 Ga. App. 375, 133 S.E.2d 62 (1963).
Obligation of a surety may be for a previously existing obligation if there is a consideration for the execution of the instrument. Nichols v. Miller, 91 Ga. App. 99, 84 S.E.2d 841 (1954).
Consideration for preexisting debt is insufficient.
- Whether the obligation of a person in executing a note in payment of a preexisting indebtedness of another, when the latter is not released, constitutes a contract of suretyship, the consideration for the latter's obligation will not suffice as a consideration for the contract of suretyship, but the contract must be supported by a new and distinct consideration. McCrary v. Berry, 51 Ga. App. 947, 181 S.E. 814 (1935).
Promise without detriment to creditor or benefit to debtor is nudum pactum.
- Promise to pay the preexisting debt of another, without any detriment or inconvenience to the creditor or any benefit secured to the debtor in consequence of the undertaking, is a mere nudum pactum. Jackson v. First Bank, 150 Ga. App. 182, 256 S.E.2d 923 (1979).
Benefit to principal binds surety.
- Benefit given to or obtained by the maker or principal on the maker's transfer of the note with a surety's endorsement supplies a consideration sufficient to bind the surety. Jordan v. First Nat'l Bank, 19 Ga. App. 118, 91 S.E. 287 (1917).
Proof of want of consideration.
- Surety cannot defeat liability by proving merely that the surety received no monetary consideration, but in order to sustain a defense of want of consideration, the surety would have to show that the principal did not receive any consideration or benefit from the paper sued on. Tennille Banking Co. v. Ward, 29 Ga. App. 660, 116 S.E. 347 (1923); Jackson v. First Bank, 150 Ga. App. 182, 256 S.E.2d 923 (1979).
Consideration to surety individually not needed.
- It is not necessary that there should be a consideration to the surety individually for the suretyship in order to bind the surety; it is sufficient if there is a valid consideration out of which the suretyship grew. Walls v. Muscogee Bank & Trust Co., 44 Ga. App. 361, 161 S.E. 663 (1931).
Only consideration flowing to principal is required.
- Contract of suretyship is when, in consideration of the benefit extended to the principal debtor, one lends one's credit by joining in the principal debtor's obligation, so as to render oneself directly and primarily responsible with the principal on the same contract, and without any reference to the solvency of the principal; in such a case, the promise of each being one and the same, one consideration, the one flowing to the principal debtor, is all that is required, although there may be additional consideration flowing to the surety. Durham v. Greenwold, 188 Ga. 165, 3 S.E.2d 585 (1939).
Confidentiality provision void and consideration adequate.
- Trial court properly granted summary judgment to a payee under the terms of a settlement agreement to recover funds owed for a preexisting debt, despite the fact that a confidentiality provision contained therein was void for public policy reasons, as the consideration supporting the payment provision was separate and apart from the confidentiality provision. Thus, the obligation to pay the payee remained enforceable, and the guarantor under the settlement agreement remained obligated to pay the payee the debt owed. Unami v. Roshan, 290 Ga. App. 317, 659 S.E.2d 724 (2008).
Indulgence to principal, such as extension of time, suffices.
- Extension of time by a creditor to a principal debtor is a sufficient consideration to support the accommodation endorsement of a note renewing the original note. Hollinshead v. Virginia Nat'l Bank, 104 Ga. 250, 30 S.E. 728 (1898).
When the appellant obligates oneself as a surety, it is not necessary that the appellant receive a separate consideration from the transaction in order for the appellant's promise to be binding on the appellant. It is enough that the maker received a consideration, even though that consideration may have amounted to nothing more than an extension of time resulting from the refinancing of preexisting indebtedness. Oliver v. Citizens DeKalb Bank, 150 Ga. App. 437, 258 S.E.2d 204 (1979).
Words "value received" are always subject to explanation. Baggs v. Funderburke, 11 Ga. App. 173, 74 S.E. 937 (1912).
Words "value received" have been held not to show conclusively that there was consideration. Wolkin v. National Acceptance Co., 222 Ga. 487, 150 S.E.2d 831 (1966).
Mere recitation "for value received" in the instrument is not controlling. Southern Land & Dev. Co. v. Silvers, 499 F.2d 967 (6th Cir. 1974).
Implied promise may be a sufficient consideration for an express promise whereby one party obligates oneself to pay the debt of another in consideration of indulgence to one's principal, the latter remaining bound therefor. Loewenherz v. Weil, 33 Ga. App. 760, 127 S.E. 883 (1925).
Past consideration is insufficient for guaranty or suretyship.
- Past consideration, one which has already served its purpose in a former transaction, will support neither a contract of guaranty nor a contract of suretyship. Jackson v. First Bank, 150 Ga. App. 182, 256 S.E.2d 923 (1979).
Guarantor's promise cannot be founded on a past consideration or one flowing to the debtor only, such as a previous extension of credit to the principal debtor plus an agreement to postpone the time of collection of the principal's debt, and the fact that the purported guarantor is a married woman who owns all of the stock of the corporate debtor does not allow the court to pierce the corporate veil and to consider the benefit as one flowing directly to the owner. Bearden v. Ebcap Supply Co., 108 Ga. App. 375, 133 S.E.2d 62 (1963).
Contract of guaranty executed after the original obligation must be founded on some new type of consideration, independent of that flowing to the principal and flowing directly to the guarantor; past consideration which has already served its purpose in a former transaction will not support a contract of guaranty. Gwinnett Com. Bank v. Flake, 151 Ga. App. 578, 260 S.E.2d 523 (1979).
Forbearance to sue would be insufficient unless requested for becoming surety.
- Mere forbearance by the plaintiff to prosecute a judgment, without even so much as a request therefor, would not have afforded a consideration for the promise of the defendants to be liable as sureties. But undoubtedly, if they sought and also obtained an agreement for the grant of it, the execution of the notes signed by them as sureties in consideration thereof would be binding upon them. Broughton v. Joseph Lazarus Co., 13 Ga. App. 153, 78 S.E. 1024 (1913); Watkins Medical Co. v. Marbach, 20 Ga. App. 691, 93 S.E. 270 (1917); Loewenherz v. Weil, 33 Ga. App. 760, 127 S.E. 883 (1925).
If the principal received the proceeds of the subject loans, there was adequate consideration for the contracts of suretyship. Delta Diversified, Inc. v. Citizens & S. Nat'l Bank, 171 Ga. App. 625, 320 S.E.2d 767 (1984).
Consideration found.- In return for parties' personal and unconditional guaranty of a debt, the federal government guaranteed a loan of the principal, a corporation of which the guarantors were 10 percent stockholders. Because this in essence financed the guarantors' business, there was thereby conferred a direct benefit on the principal and an indirect benefit on the guarantors. United States v. Blue Dolphin Assocs., 620 F. Supp. 463 (S.D. Ga. 1985).
Under O.C.G.A. § 10-7-1, the mere lack of any personal consideration flowing directly to one guarantor constituted no legal defense to their liability on the guaranty because while the one guarantor did not execute a guaranty in connection with the initial loan, the record established that the one guarantor executed a guaranty on the same date the loan was renewed. MJL Props. v. Cmty. & S. Bank, 330 Ga. App. 524, 768 S.E.2d 111 (2015).
Procedure
When action against surety barred by statute of limitations.
- Right of action upon an unsealed contract of surety is barred by the statute of limitations upon the expiration of six years after the date of the maturity of the obligation, not six years after the date of the execution of the agreement, since no right of action accrues until the maturity date of the obligation. Fagelson v. Pfister Aluminum Corp., 109 Ga. App. 663, 137 S.E.2d 313 (1964), commented on in, 1 Ga. St. B.J. 523 (1965).
Action may be brought against surety by one beneficially interested in contract.
- Subcontractor's bond to a main contractor to build a hospital, conditioned in part to pay all persons having contracts directly with the subcontractor for labor and materials, gave a materialman who furnished marble directly to the subcontractor such a beneficial interest in the bond as to authorize an action against the surety thereon, for the use of the materialman, for the subcontractor's failure to pay the materialman for the marble. Fidelity & Deposit Co. v. Pittman ex rel. Georgia Marble Co., 52 Ga. App. 394, 183 S.E. 572 (1936).
Principal and surety may be joined in one action.
- Liability of the principal and surety being joint and several, they may be joined in same action. Durham v. Greenwold, 188 Ga. 165, 3 S.E.2d 585 (1939).
Surety binds oneself to perform if the principal does not, without regard to one's ability to do so. The surety's contract is equally absolute with that of the principal. They may be sued in the same action, and judgment may be entered up against both. Hartsfield Co. v. Robertson, 48 Ga. App. 735, 173 S.E. 201 (1934); Hartsfield Co. v. Hamil, 180 Ga. 615, 180 S.E. 128 (1935); Brilliant Coal Co. v. Gandy, 51 Ga. App. 264, 180 S.E. 379 (1935); Guaranty Mtg. Co. v. National Life Ins. Co., 55 Ga. App. 104, 189 S.E. 603 (1936), aff'd, 184 Ga. 644, 192 S.E. 298 (1937); Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 25, 16 S.E.2d 909 (1941); W.T. Rawleigh Co. v. Overstreet, 71 Ga. App. 873, 32 S.E.2d 574 (1944); Kennedy v. Thruway Serv. City, Inc., 133 Ga. App. 858, 212 S.E.2d 492 (1975).
"Contract of suretyship" is when one lends one's credit by joining in the principal debtor's obligation, so as to render oneself directly and primarily responsible with the debtor, and on the same contract, and without reference to the solvency of the principal. In such a case, the promise of each being one and the same, and their liability being joint and several, they may be joined in the same action. Erbelding v. Noland Co., 83 Ga. App. 464, 64 S.E.2d 218 (1951).
Surety may be sued alone.
- If note was a joint and severable obligation, suit was properly brought against the surety alone who resided in the county in which the suit was instituted. Griffin v. Blackshear Bank, 66 Ga. App. 821, 19 S.E.2d 325 (1942).
Surety may be sued first.
- Surety is an original debtor, and a surety's contract is equally absolute with that of a surety's principal; they may be sued in the same action, or the surety may even be sued first. Woodward v. La Porte, 181 Ga. 731, 184 S.E. 280 (1936).
Guarantor and principal may not be sued jointly.
- Contract of the guarantor is separate and distinct from the contract of the debtor, and they cannot be sued jointly; the two contracts are several, not joint, and the liability on each is several and those who contracted the account are not liable at all on the guaranty, and one who made the guaranty is not liable at all on the account. Shepard v. Moultrie Banking Co., 48 Ga. App. 194, 172 S.E. 587 (1934).
Improper joinder does not bar subsequent action against guarantor.
- Fact that a joint action was brought against the principal and the other named parties as sureties or guarantors and a judgment by default obtained against all of them except the defendant, who successfully contended that the defendant was a guarantor and could not be sued in such action, will not estop the plaintiff from bringing an action against the defendant as such guarantor. W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514, 1 S.E.2d 609 (1939).
To recover against guarantor, inability of principal to perform must be shown.
- Before an action can be maintained against a guarantor, it must be shown that the principal is unable to perform. The surety says to the creditor: "If your debtor will not pay, I will pay." The guarantor says to the creditor: "Proceed first against the principal, and, if he should not be able to pay, then you may proceed against me." It has been said that there is no instance in the books of a guarantor contracting jointly with a principal. Hartsfield Co. v. Hamil, 180 Ga. 615, 180 S.E. 128 (1935).
A guarantor does not contract that the principal will pay, but simply that the principal is able to do so, warranting nothing but the solvency of the principal, and before an action can be maintained against a guarantor, it must be shown that the principal is unable to perform. Brilliant Coal Co. v. Gandy, 51 Ga. App. 264, 180 S.E. 379 (1935); Guaranty Mtg. Co. v. National Life Ins. Co., 55 Ga. App. 104, 189 S.E. 603 (1936), aff'd, 184 Ga. 644, 192 S.E. 298 (1937).
Ordinarily, a guarantor cannot be sued to judgment on a contract of guaranty in the absence of a prior judgment against the principal and a nulla bona return, unless it is alleged and proved that the principal debtor is insolvent or that the debtor cannot be made to respond to a judgment that may be obtained against the debtor by the plaintiff. Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 25, 16 S.E.2d 909 (1941).
When the contract, properly construed, is one of guaranty, before an action may be maintained on such contract, it must appear that the principal debtor is insolvent or is unable to respond to any judgment which the creditor may obtain against it. Erbelding v. Noland Co., 83 Ga. App. 464, 64 S.E.2d 218 (1951).
Guarantor is only secondarily liable on the principal's obligation, and in order to recover against a guarantor without first suing and seeking to enforce a judgment against the principal, the obligee must first show that the principal is insolvent or cannot be made to respond to a judgment against the obligee. Ferguson v. Atlanta Newspapers, Inc., 91 Ga. App. 115, 85 S.E.2d 72 (1954).
Guarantor, unlike a surety, is not liable until it appears that the debt is uncollectible from the primary debtor. Decatur Coca-Cola Bottling Co. v. Variety Vending Corp., 277 F. Supp. 393 (N.D. Ga. 1967).
When guarantor's liability under contract is direct and primary.
- When under an agreement the defendant is primarily liable to the plaintiff, not secondarily so due to the defendant's having agreed to pay a certain amount for the principal debtor promptly on demand at maturity. The defendant's liability under the contract is direct and primary and, upon the defendant's failure to pay as provided therein, the defendant is subject to suit thereon, without it being shown that the principal debtor was insolvent, or unable to respond to any judgment that the plaintiff may obtain against the principal debtor. Under these circumstances, it is immaterial whether the instrument in question be denominated a contract of suretyship or one of guaranty. Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 25, 16 S.E.2d 909 (1941).
Amount admitted by guarantor's principal not conclusive.
- Guarantor is not conclusively bound by a judgment or the amount admitted due by the guarantor's principal, and such amount is only prima facie evidence of liability to the creditor; while a default judgment against a guarantor as to liability based on the guarantor's failure to answer the complaint was proper, the trial court erred in granting judgment against the guarantor without proof of damages, and the case was remanded for further proceedings regarding the damages owed by the guarantor. McCorvey Grading & Pipeline, Inc. v. Blalock Oil Co., 268 Ga. App. 795, 602 S.E.2d 842 (2004).
Case remanded when findings so deficient as to preclude review.
- When there may have been forbearance sufficient to constitute consideration for the guaranty as a material issue, but the findings of the trial court are so deficient as to preclude review, the appeal will be remanded with direction that the judgment be vacated and a new one entered with appropriate findings of fact and conclusions of law, after which the losing party shall be free to enter another appeal. Hickok v. Starka Indus., Inc., 151 Ga. App. 668, 261 S.E.2d 418 (1979).
OPINIONS OF THE ATTORNEY GENERALContract of guaranty is a collateral "obligation" which is just as enforceable as any other contract. 1971 Op. Att'y Gen. No. 71-69.
Notes guaranteed by the Georgia Higher Education Assistance Corporation and the United States government were "obligations" within the meaning of Ga. L. 1965, p. 217, § 5(2). 1971 Op. Att'y Gen. No. 71-69.
RESEARCH REFERENCES
Am. Jur. 2d.
- 74 Am. Jur. 2d, Suretyship, § 1 et seq.
C.J.S.- 72 C.J.S., Principal and Surety, § 12.
ALR.
- Liability of surety or guarantor for partnership in respect of transactions or defaults subsequent to change in personnel of the partnership, 45 A.L.R. 1426.
Liability of grantee assuming mortgage debt, to grantor, 76 A.L.R. 1191; 97 A.L.R. 1076.
Duration of continuing guaranty, 81 A.L.R. 790.
Liabilities of sureties on bond of guardian, executor, administrator, or trustee for defalcation or deficit occurring before bond was given, 82 A.L.R. 585.
Guaranty of "collection and payment" as independent guaranty of payment or only of payment through collection, 84 A.L.R. 289.
Guaranty of commercial credit of dealer as affected by latter's change of location or field of operation, 89 A.L.R. 651.
Penalty as limit of liability on bond which protects several persons, and their relative rights as affected thereby, 89 A.L.R. 1071.
Lessee as surety for rent after assignment, and effect of lessor's dealings (other than consent to assignment or mere acceptance of rent from assignee) to release lessee, 99 A.L.R. 1238.
Guaranty as covering renewals, after revocation, of claims within coverage at time of revocation, 100 A.L.R. 1236, 58 A.L.R.5th 325.
Validity, construction, and application of guaranty of corporate stock, or dividends thereon, by one other than corporation, 107 A.L.R. 1171.
Consideration for assumption of obligation as guarantor, surety, endorser, or indemnitor, after execution and delivery of principal contract, as predicable upon an antecedent promise to assume or furnish such obligation, 167 A.L.R. 1174.
Parol evidence rule as applied to written guaranty, 33 A.L.R.2d 960.
Who may enforce guaranty, 41 A.L.R.2d 1213.
Right to join principal debtor and guarantor as parties defendant, 53 A.L.R.2d 522.
Necessity of creditor giving guarantor notice of acceptance of guaranty, 6 A.L.R.3d 355.
Conflict of laws: what law governs validity and construction of written guaranty, 72 A.L.R.3d 1180.