76 S.E.2d 26
34548.Court of Appeals of Georgia.
DECIDED APRIL 22, 1953.
Under the facts of the case, the court did not err in sustaining the demurrers to the defendant’s answer or in directing a verdict for the plaintiff. The court eliminated from the case the obligations with reference to which the answer set forth a good defense. Since there is no brief of the evidence in the record or in the bill of exceptions, the question whether the plaintiff made out a case cannot be determined.
DECIDED APRIL 22, 1953.
Action on contract. Before Judge Lowe. Fulton Civil Court. January 15, 1953.
Universal C. I. T. Credit Corporation sued I. J. Paradies on
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a contract of suretyship, whereby the defendant allegedly guaranteed certain obligations of Haber Motors, a trade name for Robert F. Haber. The material part of such contract is as follows: “To: Commercial Investment Trust Incorporated and/or Universal C. I. T. Credit Corporation and/or C. I. T. Corporation and/or Canadian Acceptance Corporation Limited: I, we, and each of us, jointly and severally request you to extend the privilege of receiving motor vehicles and/or other merchandise under Trust Receipt or as bailee to, and/or to purchase and/or discount notes and/or other obligations (herein generally termed `paper’) or otherwise to do business with Haber Motors, LaGrange, Georgia, hereinafter called the Dealer, and in consideration thereof I, we, and each of us jointly, severally and unconditionally guarantee to you (which pronoun whenever used herein shall be held to include each of you, any subsidiary or affiliated company who shall do business with the Dealer and your and their respective successors and assigns) that the said Dealer will promptly and faithfully pay and discharge each obligation, present and future, and agree without your first having to proceed against said Dealer, or to liquidate the paper or any security held by you, to pay any and all sums due you from Dealer and all loss, costs, attorney’s fees or expenses which may be suffered by you by reason of Dealer’s default, and agree to be bound by and to pay any deficiency established by a sale of paper held whether with or without notice to us, pursuant to any instrument signed or to be signed by said Dealer. I, we, and each of us hereby subordinate to the payment of any sums now due or which may hereafter become due you from said Dealer, any sums due or which may hereafter become due to us or any of us from the said Dealer, and waive all rights with respect thereto until all obligations due or to become due you shall have been fully discharged and hereby assign such sums to you to apply on such obligations and agree to remit to you, on receipt, any moneys received on account of the indebtedness hereby subordinated. This guaranty shall become effective forthwith and shall continue indefinitely (whether or not subsequent financial statements are submitted to you by the Dealer) unaffected by the death of any of us subject to the right of any of the undersigned or his estate to terminate his liability hereunder as to
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any loans to or purchases from or discounts of paper for said Dealer after termination of said guaranty by notice sent to you by registered mail, naming the date of termination which shall not be earlier than the date of receipt of such notice by you, but said guaranty shall continue in full force and effect as to any and all transactions prior to the effective date of termination, and as to any of the undersigned not giving such notice. The undersigned waive notice of the acceptance of this guaranty and of notice of non-payment, demand or protest of any note, or draft signed, accepted or endorsed by said Dealer, and any other notices required by law, and you may renew or extend any notes or other obligations of purchasers and/or of the Dealer and/or of co-guarantors or accept partial payments thereon or settle, release, compound or compromise any of the same and/or collect upon or otherwise liquidate paper and/or security held by you in manner as you may deem advisable without impairing any obligation of any of the undersigned. This guarantee covers cars handled on Trust Receipt and/or Chattel Mortgage. Maximum liability, $25,000. Dated at Atlanta, Ga., this 24 day of Sept., 1951. I. J. Paradis (Seal), 730 McMillan St., N.W. Witness: L. H. Keen. Witness Address: 1509 1st National Bank Bldg., Atlanta, Ga.”
Most of this agreement was printed. The dealer’s name and address and the following provision were inserted by typewriter, and of course the signature and addresses were written by pen and ink. A photostatic copy of this contract attached to the amended petition shows that the words in italics below, appearing in the second line of the contract were crossed out and initialed by the parties: “I, we, and each of us, jointly and severally, request you to extend the privilege of receiving motor vehicles and/or other merchandise under Trust Receipt or as bailee to, (initials)and/or to purchase and/or discount notes and/or other obligations (initials).” The petition alleged that the consideration for the contract sued on was the extension of time to Robert F. Haber for the payment of instalments due and to become due on his capital-loan obligation to the petitioner and the extension of future credit on the security of chattel mortgages or trust receipts. The petition alleged that, at the time the contract sued on was entered into, Robert F. Haber,
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doing business as Haber Motors, was indebted to the petitioner for money loaned on the security of certain chattel mortgages. Eleven of the items sued for were balances due on floor-plan mortgages, those given by Haber Motors to the plaintiff directly to enable Haber Motors to hold the cars for sale under the agreement to account for the proceeds of every car sold to a customer. This arrangement is similar to the floor-planning of cars by trust receipts. Two of the items sued for were due, not on floor-plan mortgages given by Haber Motor Company to the plaintiff, but on conditional-sale contracts (denominated chattel mortgages) given to Haber Motor Company by purchasers of cars to secure the balance due, and assigned to the plaintiff with recourse. All the items sued for were balances alleged to be due after repossession and sale by the plaintiff except three, and those were balances due on cars which Haber Motors sold and the proceeds of which were not accounted for.
The defendant’s answer set forth, among other things, that the intention of the parties through said contract was, and the contract was intended to mean, that the defendant guaranteed only to protect the plaintiff against losses due to Haber Motors’ selling floor-planned cars without accounting to the plaintiff for the proceeds. It alleged that new cars were floor-planned through trust receipts, and used cars by means of chattel mortgages from Haber Motors to the plaintiff. It alleged that the contract did not mean that the defendant guaranteed against loss on a car to which a mortgage was taken by Haber Motors to secure the balance of the purchase price and assigned with recourse to the plaintiff.
The court sustained the plaintiff’s demurrers to all of the answer except the plea of payment, to which judgment the defendant excepted pendente lite; and a verdict was directed for the plaintiff for $2721 principal and $228.46 interest. The court eliminated the amounts claimed to be due on the contracts, exhibits B-6 and B-7, because they were executed by William A. Abernathy as general manager of Haber Motors, and there was no evidence of his authority to execute them; and it also eliminated the claims based on exhibits C and E, because they were conditional-sale contracts signed by individuals and hypothecated to the plaintiff by endorsement of
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Haber Motors. The defendant excepts to the sustaining of the plaintiff’s demurrers to the answer, and to the direction of a verdict, on the grounds that it was contrary to law, contrary to evidence, and without evidence to support it, and because there were issues of fact that should have been submitted to a jury. There is no brief of evidence in the record or bill of exceptions, and no other assignments of error are made.
Brown Shoob, for plaintiff in error.
Woodruff, Swift Dorsey, contra.
FELTON, J.
1. Since there is no brief of the evidence, this court will not determine whether the plaintiff should have made out a case against the defendant surety in the manner in which he would have been required to make out a case for a deficiency judgment against the principal; nor can it decide whether such a case was in fact made out under Barrett v. Distributors Group, 85 Ga. App. 529 (69 S.E.2d 810).
2. As against any assignment of error properly made, the exceptions to the sustaining of the demurrers to the answer and to the direction of a verdict are without merit. The suretyship contract sued on is not susceptible to the construction that it was given solely to secure liabilities of Haber Motors brought about by the sale of floor-planned cars by Haber Motors without accounting to the plaintiff for the proceeds. The answer of the defendant was not sufficient to raise an ambiguity in the contract as to the defendant’s liability for the floor-plan chattel mortgages by which Haber Motors floor-planned the cars involved by executing chattel mortgages directly to the plaintiff. The only ambiguity raised by the answer was as to the question whether the term in the contract, “This contract covers cars handled on Trust Receipt and/or chattel mortgages,” included chattel mortgages executed and delivered to Haber Motors by purchasers of cars from Haber Motors and transferred to the plaintiff. Since the trial court excluded all chattel mortgages and conditional-sale contracts of this nature, the error in sustaining the demurrer to that part of the answer raising the question of whether the contract covered such obligations became harmless. The court directed a verdict for the items covered by the floor-plan chattel mortgages, and there was no error in so doing, since, as ruled in the first division, there is no brief of
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evidence and therefore no valid assignment of error on whether the plaintiff properly made out a case.
The court did not err in sustaining the demurrers to the answer or in directing a verdict.
Judgments affirmed. Sutton, C. J., and Worrill, J., concur.