Superior Yarn Dyeing, Inc. (“Superior Yarn” or “the company”) entered into a loan agreement with First Union National Bank (“First Union”) in November 1988 with a principal amount of $400,000, plus a $250,000 line of credit. This loan was secured via the company’s assets and separate guaranty agreements executed by the president of Superior Yarn, John Boykin, and Michael L. Percy, a major stockholder of the company. The guaranty Boykin executed provides for unlimited personal liability and the guaranty Percy executed provides for personal liability up to $100,000, “plus all interest or Finance *733 charges, Costs of Court, penalty interest, late payment charges and the reasonable attorneys’ fees of [First Union].” Superior Yarn subsequently defaulted on the loan and First Union liquidated the assets of the company. Claiming a deficiency, First Union brought an action against defendants Boykin and Percy under their guaranty agreements for $92,729.61 in unpaid principal, attorney fees and interest.
At a jury trial, the issue of the amount and propriety of the alleged deficiency remaining under the loan agreement was disputed and the jury was properly charged in this regard. Also in dispute was whether First Union discharged defendant Percy as a co-surety (apparently with defendant Boykin’s consent) and whether First Union waived material terms of the loan agreement, thereby discharging the guarantors via novation. See OCGA § 10-7-21. In this regard, defendant Percy testified that he and defendant Boykin met with a representative of First Union in November 1990 to discuss Superior Yarn’s violation of certain loan covenants (apparently) relating to the company’s insolvency and that First Union then insisted upon infusion of additional capital into the company in order to prevent declaration of a default under the loan agreement. Defendant Percy testified that he responded to First Union’s demand by supplying Superior Yarn with $50,000 in cash and by taking steps to convert $80,000 the company owed him into corporate stock. Defendant Percy explained that he provided this capital in exchange for First Union’s waiver of default under the loan agreement and promise to “satisfy any obligations [he] had to the bank. . . .” First Union countered by introducing evidence of a follow-up letter posted to defendant Percy wherein he affirmed (via execution and return of the letter to First Union) that consideration for the capital-infusion transaction did not include First Union’s promise to discharge obligations related to the limited guaranty he executed. This letter pertinently provides as follows: “Your purpose and reasoning for offering this financial support to Superior [Yarn is] to assist the company by providing needed working capital, obtain a waiver of certain loan covenant violations, and if no other shareholder should elect to acquire like amounts of the company’s stock, a greater position of ownership in Superior Yarn Dyeing, Inc.”
Upon the conclusion of evidence, the parties did not request nor did the trial court charge the jury as to any aspect of defendants’ liability as co-guarantors. The only instructions relating to defendants’ liability under the guaranty agreements (other than the amount and propriety of the alleged deficiency under the loan agreement) were as follows: “Any change in the nature or terms of a contract is called a novation, and such novation, without the consent of the surety, discharges him. . . . While a stipulation of a contract may be waived by the conduct of the parties, the intent of the parties must be mutual. ... I charge you that the Defendant carries the burden to *734 establish the existence of his affirmative defense [of] accord and satisfaction. . . . And I charge you that an accord and satisfaction must be of some advantage, legal or equitable, to the creditor, or it shall not have the effect of barring him from his legal rights under the original agreement.” The trial court then provided the jury a special verdict form with spaces (if found to be applicable) for entry of separate verdicts against defendant Boykin and defendant Percy. Neither First Union nor defendants objected. First Union’s only complaints to the trial court’s charge were expressed via a general objection (without supporting argument) to the trial court’s charge on the law of novation and an objection that the trial court failed to give the following written request to charge: “To be effective, a notice of revocation of a guaranty agreement must be in strict and full compliance with provisions of the guaranty contract calling for notice, must be clearly expressed, unqualified, positive, and absolute.”
The jury returned a special verdict against defendant Boykin for $84,750 and defendant Percy for $28,250. When the trial court solicited objections to the verdict, First Union agreed that the form of the verdict was proper. The jury was then allowed to disperse. This appeal followed entry of judgment on the jury’s verdict and denial of First Union’s motion to amend the verdict or, alternatively, for a new trial. Held:
1. First Union contends the trial court erred in failing to amend the jury’s verdict to reflect defendants’ liability as guarantors of the same principal and the same debt, reasoning that the verdict should be molded to accomplish judgment against defendants, jointly and severally, for the aggregate sum of the jury’s award, i.e., $113,000. Alternatively, First Union contends the trial court should have granted a new trial because the verdict illegally apportioned damages among joint and several obligors.
The undisputed evidence reveals that defendants Percy and Boykin contemporaneously executed guaranty agreements in favor of a common principal (Superior Yarn) to insure performance of the same duty or obligation, thus binding them (as a matter of law) jointly and severally to the limit of defendant Percy’s personal liability of $100,000, “plus all interest or Finance charges, Costs of Court, penalty interest, late payment charges and the reasonable attorneys’ fees of [First Union].” See
Snow v. Brown,
“ ‘(W)here “an inconsistent and void verdict is returned by the jury, it is proper for the trial judge to refuse to receive the verdict, and to require them to return for further deliberations, under proper instructions. (Cits.)”
Thompson v. Ingram,
2. 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. Citi
*736
zens &c. DeKalb Bank,
These enumerations provide no basis for reversal. The jury’s verdict in favor of First Union indicates rejection of claims that defendants are discharged under their guaranty agreements via waiver of any term under the principal’s loan agreement which materially altered defendants’ liability under the guaranty agreements. See OCGA § 10-7-21;
Dunlap v. Citizens &c. DeKalb Bank,
Judgment affirmed.