Opinion
43433.
ARGUED FEBRUARY 5, 1968.
DECIDED MAY 9, 1968. REHEARING DENIED MAY 27, 1968.
Action on note. Fulton Civil Court. Before Judge Williams.
Robert B. Harris, Terry L. Nevel, for appellant.
Hansell, Post, Brandon Dorsey, Hugh M. Dorsey, Jr., McChesney H. Jeffries, Holcombe Green, Charles Van S. Mattola, R. J. Armstrong, for appellees.
Where the date on a guaranty contract, which is not a negotiable instrument, is intentionally altered by the obligee without intent to defraud, the effect of such an alteration is governed by Code § 20-802, and where the original date is ascertainable, especially on the instrument itself, the contract may be enforced in its original form as to the appellant in this case. The court neither erred in denying appellant's motion for a summary judgment nor in granting appellee's.
ARGUED FEBRUARY 5, 1968 — DECIDED MAY 9, 1968 — REHEARING DENIED MAY 27, 1968 — CERT. APPLIED FOR.
This is the second appearance of this case in this court. See 115 Ga. App. 499 ( 155 S.E.2d 32). The questions raised in the new appeals by the parties in the above case are different, so the cases are decided separately.
The only question left in this case is whether the alteration of the guaranty agreement by changing its date from May 11 to November 11, 1964, releases E. H. Overcash, an original signer of the guaranty agreement. The date was changed by the bank when a substitute guarantor was substituted for one of the original three guarantors other than Overcash and Haynie. The conclusion of the trial judge that this alteration did not discharge E. H. Overcash is correct. As ruled in the first appearance of this case, the provisions of the contract, including the date, could be ascertained from the instrument itself and under the circumstances, including the absence of an intent to defraud, the contract could be enforced against Overcash. Code § 20-802. The contention of the appellee, that any alteration of a guaranty or suretyship agreement, whether material, fraudulent, harmful, prejudicial or not voids the agreement, is not well founded. Even if the rulings on the point in the cases cited by appellant are not obiter, the strict common law rule in respect to the alteration of contracts is no longer in effect. As to ordinary contracts, as the one here involved, the common law rule was changed by the Code section next above cited. As to negotiable instruments see Cook v. Parks, 46 Ga. App. 749 ( 169 S.E. 208) and Code sections cited in the first decision in this case (cited at the first of this opinion). See also Shirley v. Swafford, 119 Ga. 43 ( 45 S.E. 722); Heard v. Tappan Merritt, 121 Ga. 437 ( 49 S.E. 292); International Harvester Co. v. Davis, 13 Ga. App. 1 ( 78 S.E. 770). Code §§ 103-103 and 103-202 do not require a different conclusion. Bethune v. Dozier, 10 Ga. 235 was decided in 1851, prior to the Code of 1863 in which Code § 20-802 first appeared. Taylor v. Johnson, 17 Ga. 521, was also decided prior to 1863.
The court did not err in denying the appellant's motion for a summary judgment or in granting the appellee's similar motion.
Judgments affirmed. Eberhardt and Whitman, JJ., concur.