Opinion
52178.
SUBMITTED MAY 5, 1976.
DECIDED MAY 21, 1976.
Action on account. Cobb State Court. Before Judge White.
Brackett, Arnall Stephens, H. A. Stephens, Jr., for appellant.
Charles W. Field, for appellee.
The facts of this case are as follows: The plaintiff-appellee instituted suit against LHR Corporation and the appellant as co-defendants. The complaint alleges that LHR Corporation had been furnished materials on account and had refused to pay and that Ross had "personally guaranteed the payment of said account." The corporate defendant was dismissed because of its voluntary petition in bankruptcy. The action proceeded solely against Ross on the theory of his "personal guarantee" of the corporate account. At trial the evidence showed that the plaintiff had furnished materials to LHR Corporation for the construction of a house; that Ross had subsequently informed the plaintiff not to furnish any more materials on account to anyone on that particular job; that Ross later telephoned the plaintiff and ordered building materials for that job; that the plaintiff replied it "could not just charge this to LHR and deliver it without having some understanding about who was to pay for the material"; that Ross advised he "would personally guarantee the payment of this bill," that he would "take care of the bill," that "he would be personally responsible for the bills that were made by him"; that Ross, individually never had an account with the plaintiff and never told plaintiff to charge the materials to him personally.
The defendant-appellant through every stage of the proceeding raised the affirmative defense of statute of frauds. All objections were overruled, the case proceeded to the jury and a verdict was returned in the plaintiff's favor. The defendant appeals. We reverse.
SUBMITTED MAY 5, 1976 — DECIDED MAY 21, 1976.
There are several enumerations of error all going to the statute of frauds defense. Code § 20-401 (2) requires that a promise to answer for the debt, default, or miscarriage of another be in writing. The promise which must be in writing is collateral, resulting in the second promiser becoming bound along with the original promiser; there is no need for writing if a new promiser, for valuable consideration, substitutes himself as the party who is to perform, and releases the original promisor from liability. Evans v. Griffin, 1 Ga. App. 327, 328 ( 57 S.E. 921). The evidence on this appeal will not support a finding that the original debtor (LHR) was released by the appellee, for suit was brought against it as a joint defendant to recover on the unpaid account; there was no substitution of Ross as the sole party to perform. Harris v. Paulk, 10 Ga. App. 334 ( 73 S.E. 430). Neither will the evidence support a finding that the sale was made wholly on Ross' credit. Flournoy Epping v. Wooten, 71 Ga. 169. Compare Summerour v. Burt, 102 Ga. App. 687 ( 117 S.E.2d 542); rather the evidence demonstrates that LHR's account was charged (Ross never had one nor was one ever opened in his name) and appellee, by bringing suit against both the corporate entity and the individual, was looking to both for the money. Kersey v. McGowan Undertaking Co., 21 Ga. App. 157 ( 93 S.E. 1017). When one person tells another to let a third person have goods and that he will see that the debt is paid, in order for the promisor to become bound in the absence of a writing, it is requisite that credit shall be given exclusively to the promisor. Cordray v. James, 19 Ga. App. 156 (2) ( 91 S.E. 239).
The most that can be said for the plaintiff's evidence is that it showed Ross agreed to guarantee payment of the account himself. "The words, `I will guarantee the payment,' imported the undertaking by one employing the expression to answer for the debt or default of another as a guarantor, in the absence of qualifying terms which might have the effect of showing that the undertaking was an original, independent one, and not collateral." Southern Coal c. Co. v. Randall, 141 Ga. 48, 50 ( 80 S.E. 285). From the evidence here it appears that the materials were charged to LHR Corporation and not to Ross and that in bringing suit against both the corporate and the individual it was acknowledged that the words of Ross were not relied upon to establish an independent and original undertaking on his part. On its face this agreement or promise of Ross was an undertaking in the nature of a guaranty or suretyship and in the absence of a writing would be unenforceable. Southern Coal c. Co. v. Randall, 141 Ga. 48, 50, supra. A new trial should have been granted.
Judgment reversed. Quillian and Webb, JJ., concur.