140 Ga. App. 10 | Ga. Ct. App. | 1976
These two appeals are by defendants from summary judgments rendered for plaintiff payees of two separate promissory notes executed respectively to plaintiff Stewart and to plaintiff Grossbart by Howerton Properties, Inc. as maker and endorsed by two co-defendants. As the facts in each case are identical these appeals are considered jointly.
A document captioned "Release” was executed by the two plaintiffs. It recited a consideration of "One Dollar ($1.00) in hand paid to us and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.” The parties released were designated as Howerton Properties, Inc. and its officers, directors, agents and employees, they being 13 individuals designated by name plus "Coweta M-B Roads, Ltd.,” a Georgia limited partnership. The document then contained the customary general release language.
When the promissory notes were not paid plaintiffs brought these two actions thereon. Defendants answered, admitting that no payment was made on either note and setting forth, inter alia, a defense of release. Thereafter,
In support of their summary judgment motions, plaintiffs filed affidavits wherein each averred that as a condition of the transfer of the cash and notes, plaintiffs agreed to execute a general release in favor of defendants. The trial court granted the plaintiffs’ motions for summary judgment and denied those of the defendants. These appeals followed. Held:
1. It is clear that the promissory notes executed by defendants were given in part consideration for the contemporaneously executed release. Accordingly, the release cannot bar or discharge the notes. Hill v. Whidden, 158 Mass. 267 (33 NE 526). For, "A release cannot operate to discharge a promise for which it was the consideration.” 76 CJS 695, Release, § 51.
2. Relying upon Martin v. Monroe, 107 Ga. 330 (33 SE 62), defendants contend the release bars an action or recovery upon the promissory notes. We cannot agree with this contention. Unlike the release in Martin, the release in this case does not expressly relieve defendants from liability upon the notes.
3. The trial court did not err in granting plaintiffs’ motions for summary judgment and in denying defendants’ summary judgment motions.
Judgment affirmed.
Early English and American releases used the language "From the Beginning of the World to Date of Execution.”