Stated otherwise, the actual consideration for the signature of the surety is the extension of credit to his principal. Rankin v. Smith, 113 Ga. App. 204, 206 ( 147 S.E.2d 649); Dunlap v. C. S. DeKalb Bank, 134 Ga. App. 893, 895 ( 216 S.E.2d 651); Yancey Bros. v. Sure Quality c. Inc., 135 Ga. App. 465 ( 218 S.E.2d 142); see also Kennedy v. Thruway Service City, 133 Ga. App. 858, 862, supra. The subscriber here loaned her credit to that of her principal.
In its second enumeration of error, First Union contends the trial court erred in allowing defendants "to present evidence that [First Union] waived or did not enforce certain loan covenants against the principal debtor, Superior Yarn Dyeing, Inc." To the same extent, First Union contends in its third enumeration that the trial court erred in giving a charge on the law of novation, citing Dunlap v. Citizensc. DeKalb Bank, 134 Ga. App. 893, 895 (4) ( 216 S.E.2d 651), in support of an argument that defendants consented in advance in the guaranty agreements to alleged waivers which otherwise would have discharged their obligations as guarantors. With similar reasoning, First Union contends in its final enumeration that the trial court erred in refusing to give its written request to charge that, "[t]o be effective, a notice of revocation of a guaranty agreement must be in strict and full compliance with the provisions of guaranty contract calling for notice, must be clearly expressed, unqualified, positive, and absolute."
This in no wise restricted the extension of credit to the principal. See in this connection Brock Candy Co. v. Craton, 33 Ga. App. 690 ( 127 S.E. 619); Dunlap v. C. S. DeKalb Bank, 134 Ga. App. 893 ( 216 S.E.2d 651). There is no merit in this complaint. 4. The remaining enumeration of error is that the defendant sought to amend his pleadings and to introduce evidence as to failure of consideration contending that under OCGA § 9-11-15 (b) (formerly Code Ann. § 81A-115 (Ga. L. 1966, pp. 609, 627; 1968, pp. 1104, 1106; 1972, pp. 689, 694)) and McRae v. Britton, 144 Ga. App. 340 ( 240 S.E.2d 904), he might amend his pleadings at any time.
To constitute a novation under this definition, the alteration, in addition to being material, must be without the knowledge or consent of the guarantor, or it must increase the guarantor's risk. Brunswick Nursing Convalescent Center, Inc., 308 F. Supp. 297 (S.D.Ga. 1970); Dunlap v. Citizens S. Dekalb Bank, 134 Ga. App. 893, 216 S.E.2d 651 (1975); H.C. Whitmer Co. v. Sheffield, 51 Ga. App. 623, 181 S.E. 119 (1935).
In Bennett v. Union Nat. Bank c. Co., 169 Ga. App. 904 ( 315 S.E.2d 431) (1984), the defendants had executed a guarantee agreement guaranteeing payment of their son's obligations to the bank, and the language of the guarantee agreement evinced a waiver of notice by the defendants. The Court of Appeals, on motion for rehearing, construed Barbree as holding only that a seller of chattel paper with full recourse against him is a debtor entitled to notice of post-default proceedings disposing of collateral. The Court of Appeals held that such cases as Twisdale v. Ga. R. Bank, 129 Ga. App. 18, 21 ( 198 S.E.2d 396) (1973); Dunlap v. C S DeKalb Bank, 134 Ga. App. 893, 896 ( 216 S.E.2d 651) (1975) and Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 437 ( 280 S.E.2d 842) (1981), as well as the cases cited in Barbree as being partially overruled, continued to be "viable authority for the proposition that a guarantor or surety, under the terms of a separate contract, may waive such protection as notice or the right to contest the commercial reasonableness of the disposition of collateral." 169 Ga. App. at pp. 906-907.
Code Ann. § 103-203. The bank has also cited Dunlap v. C. S. Nat. Bank, 134 Ga. App. 893 ( 216 S.E.2d 651) (1975), as authority for the refusal to discharge a surety of limited liability when further extensions of credit are made to the principal. In Dunlap, the surety in the original agreement consented to liability for further extensions of credit.
When Park Regency sought to enforce the Grubers' obligations, it had already fulfilled its own obligations. See, e.g., Greenwald v. Columbus Bank Trust Co., 228 Ga. App. 527, 529 ( 492 SE2d 248) (1997) (upholding contractual provisions in a guaranty where one party authorized the other to make unilateral alterations to extend and renew their agreement); Dunlap v. C S DeKalb Bank, 134 Ga. App. 893, 896 (4) ( 216 SE2d 651) (1975). 4. (a) The Grubers claim that the evidence and the law mandate a finding that the purchase agreement was void for failure to adequately describe the real property to be conveyed.
Even though Gilbert agreed to guarantee "payment of all present and future amounts," he did not expressly consent to a renewal or modification of the original contract. Compare Dunlap v. Citizens and Southern DeKalb Bank, 134 Ga. App. 893, 896(4) ( 216 S.E.2d 651) (1975) (defendant sought discharge from contractual obligations where bank entered into subsequent note with defendant's daughter and her husband; but contract specifically stated that bank could alter, renew, or extend daughter's present or future liabilities without notifying the defendant). Moreover, the only language in the 1987 agreement that waives notice states that " [u]ntil claim is made thereon, Guarantor waives notice of any transaction entered into between BMA and [McLain's]."
It is clear from a reading of the guaranty in its entirety that appellant consented in advance to the very course of conduct in which the Bank subsequently, and in good faith, engaged to benefit Corporate Art. "`It is axiomatic that `[a] surety or guarantor may consent in advance to a course of conduct which would otherwise result in his discharge.' [Cits.]" Anderton v. Certainteed Corp., 201 Ga. App. 538, 539-540 (1) ( 411 S.E.2d 558); accord Dunlap v. C S DeKalb Bank, 134 Ga. App. 893, 896 (4) ( 216 S.E.2d 651) (surety or guarantor may consent in advance to course of conduct which otherwise would result in his discharge); compare Greenwald v. Columbus Bank c., 228 Ga. App. 527, ( 492 S.E.2d 248); (guarantors can consent in advance to changes that are subsequently made). Appellant agreed in advance to the providing of additional credit extensions by the Bank and gave guaranty as to any and all indebtedness or liability of Corporate Art now existing or hereafter coming into existence.
Guarantors can consent in advance to changes that are subsequently made. See Dunlap v. C S DeKalb Bank, 134 Ga. App. 893, 896 (4) ( 216 S.E.2d 651) (1975). Here, Greenwald and Denzik assented in advance to Bank's extension and renewal of the two notes.