James Talcott, Inc. v. Dettelbach

Full title: JAMES TALCOTT, INC. v. DETTELBACH et al

Court: Court of Appeals of Georgia

Date published: Apr 27, 1976

226 S.E.2d 309 (Ga. Ct. App. 1976)

226 S.E.2d 309

Opinion

51971.

ARGUED APRIL 5, 1976.

DECIDED APRIL 27, 1976.

Action on account. DeKalb State Court. Before Judge Mitchell.

Hopkins, Gresham Whitley, J. Arthur Lee, Jr., for appellant.

Sam G. Dettelbach, for appellees.

CLARK, Judge.

This is an appeal by plaintiff factoring concern from a judgment entered upon a directed verdict for a defendant guarantor. As we affirm the judgment we deal with only one ground of those considered by the trial judge to have warranted his ruling adverse to the plaintiff. This was his determination that without guarantor's consent there had been material alteration of the instrument which was the basis of the suit.

Plaintiff admitted that some months after the execution of the guaranty its credit manager discovered a blank existed in the signed form designated as "customer guaranty," this being the omission of the name and address of the principal. The blank was thereupon completed to read "Orr Brothers 6000 Peachtree Boulevard Norcross, Georgia." The customer was in fact a corporation, "Orr Brothers Carpets, Inc." and had been located at another address on July 30, 1973, the date of the document. The principal for whom the guaranty had been provided was not "Robert Orr and Ronald J. Orr, individually and d/b/a Orr Brothers," who had been designated as co-defendants in the instant suit.

The materiality of an alteration is a question of law. Code Ann. § 20-803. It would have been error to have submitted this question of materiality to the jury. Winn v. Hinson, 64 Ga. App. 48 (4) ( 12 S.E.2d 172). "Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in (a) the number or relation of the parties; or (b) an incomplete instrument, by completing it otherwise than as is authorized..." Code Ann. § 109A-3-407 (1).

A material alteration voids the whole contract at the option of the opposing party. Code Ann. § 20-802. See also Cook v. Parks, 46 Ga. App. 749, 751 (4, 5), 752 (7) ( 169 S.E. 208).

Judgment affirmed. Bell, C. J., and Stolz, J., concur.

ARGUED APRIL 5, 1976 — DECIDED APRIL 27, 1976.