Appellants Crim and Pruitt (collectively “Crim”) appeal the grant of summary judgment to Jones in this action for damages for breach of a commercial lеase agreement.
Crim leased space in a shopping center to Beaumont, who assigned the lease to Jones. Crim signed the assignment and exрressly agreed to its terms with the proviso that Beaumont remain obligated “for the full performance of the provisions of the lease.”
Crim sued Beaumont and .Jones for breach of contract, alleging that “despite repeated demands . . . defendants stopped making the *290 monthly rental payments рrovided for in the lease, and thereafter abandoned the premises.” About a week prior to the scheduled trial date, Crim and Beaumont enterеd into a “Consent Judgment,” which provided in pertinent part that “Beaumont is liable and indebted, as a joint obligor with Jones, to Crim, in the amount of . . . $30,000, said amount reprеsenting the amount of principal and interest presently due and owing to Crim under the lease.” Simultaneously, Crim and Beaumont executed a “Consent Agreemеnt,” pursuant to which Beaumont would pay Crim $6,000, which “shall extinguish any obligations between Crim and Beaumont relative to the subject matter of the judgment . . . [of] $30,000. . . . Should Beaumont fail to satisfy any of its requirements under this Agreement, . . . this Agreement becomes null and void and Beaumont shall remain indebted to Crim in the amount of . . . $30,000, in accordance with the Judgment. . . .” The document further specified: “Beaumont makes no representations to represent the co-defendant Jack W. Jones . . . said Agrеement being between Crim and Beaumont solely, and is in no way intended to relieve any obligation Jones may have to Crim.” Both the Consent Judgment and Consent Agreеment were made an order of the Court.
After the case was called for trial and a jury struck, Jones orally moved for and was granted summary judgment on the ground that the Consent Agreement between Crim and Beaumont had the effect of releasing him, a joint obligor, from any obligation under the lease pursuant to OCGA § 13-4-80.
Appellants contend that the trial court erred because their agreement with Beaumont was not a release and therefore not governеd by OCGA § 13-4-80. It provides: “A release may result by operation of law. When a creditor releases another who is bound jointly with or primarily to a debtor or aсcepts from a debtor a higher security for the same debt, not intended to be collateral thereto, a release results by operation of law.”
Appellants argue that the Consent Agreement is actually a covenant not to sue, applicable only to Beaumont, rather than a release applicable to both defendants.
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“ ‘The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of rules of interpretation, to discover the true intent of the parties, аnd in doing this we are to take the whole of
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(the instrument) together, and to consider this with the surrounding circumstances.’ [Cits.]”
Smallwood v. Bickers,
The Consent Agreement at issue was not intended as a release. Crim did not obtain full satisfaction from Beaumont and expressly retained the right to proceed against defendant Jones.
Revis,
supra at 369. Compare
J & S Properties v. Sterling,
While a covenant not to sue can be made lis pendens,
Register v. Andris,
Appellee further submits that a release by agreement was reached pursuant to OCGA § 9-13-74, which provides: “An agreement for a valuable consideration never to enforce a judgment or execution shall release the judgment or execution.” “The use of the word ‘never’ indicates an intent to encompass the еntirety of the judgment as applied to everyone against whom it could be enforced. The language of the statute therefore does not address a situation in which a judgment could be enforced jointly or severally against more than one party and the covenant not to enforce involvеs fewer than all of those parties.” Revis, supra at 368. As in Revis, the instrument under consideration “is not a covenant ‘never’ to enforce the . . . judgment. It specifically providеs that the judgment will be enforced as to that amount owed appellants] by appellee. There was no intent to release and discharge appellee by operation of the covenant nor was the amount received from the other defendant] intended to constitute a full satisfaction of the judgment debt so as to release appellee from liability under the judgment.” Id. at 368. The fact that the instrument was not intended as an agreement “never” to enforce the judgment is expressed in the language of the document itself. It contemplates that the full amount of the judgment would be sought from Beaumont in the event she failed to comply with the obligations under the agreement. “[T]he taking of steps by the parties to the covenant before us to avoid the operation of OCGA § 9-13-74, distinguishes] this case from the decision in Weems[, supra].” Revis, supra at 370.
The trial court erred in awarding summary judgment to appellee based on the theories urged.
Judgment reversed.
Notes
The distinction between a release and covenant not to sue in the area of torts was obliterated by the decision in
Posey v. Medical Center-West,