Prior to May of 1977, Pilgrim Paint and Decorating Company (Pilgrim Paint) purchased paint on open account from appellee-plain-tiff. On May 5, 1977, appellant-defendant, who was an officer of Pilgrim Paint, executed a personal guaranty agreement in favor of appel-lee, promising to pay any indebtedness of Pilgrim Paint in an amount not exceeding $10,000. Subsequently, appellee filed a complaint
1. Asserting that a genuine issue of fact remained concerning the defense of failure of consideration, appellant enumerates as error the grant of summary judgment to appellee. As stated, appellant raised the defense of failure of consideration for the original debt, a defense which would have been available to Pilgrim Paint as the principal debtor. Compare Hornsby v. First Nat. Bank of Atlanta,
By affidavit filed in opposition to appellee’s motion for summary judgment, appellant swore that the paint at issue was “defective and of no value whatsoever to [Pilgrim Paint].” Appellant further stated under oath that Pilgrim Paint had given appellee notice of the defective nature of the paint and of its rejection thereof, but that appellee had refused to accept the rejection. The paint was then stored and subsequently destroyed by fire. Appellant also stated that the only use of the paint by Pilgrim Paint had resulted in its having to repair the job, and that the cost of this repair work plus the wholesale cost of the paint, exceeded the claim of appellee in the pending controversy.
This was sufficient evidence that the consideration had totally failed, and the trial court erred in finding that no issue remained with regard to that defense. See OCGA § 13-5-9. See generally H&H
2. Appellee asserts that, even if failure of consideration as to the underlying obligation is generally an available defense to the principal, appellant has nonetheless waived his right to raise that defense under the terms of the instant guaranty agreement.
The guaranty agreement at issue provides in relevant part: “For and in consideration of One Dollar and other valuable consideration receipt of which is hereby acknowledged I hereby guarantee, absolutely and unconditionally at all times, unto [appellee], the payment of any indebtedness .... I hereby waive notice of acceptance of the guaranty, and all notice of the goods and merchandise sold by you to said debtor, and all notice of defaults by said debtor, and I consent to any [extension] ... of the time ... of payments . . . .”
It is clear that a guarantor may consent in advance to a course of conduct which would otherwise result in his discharge. Dunlap v. C & S DeKalb Bank,
Judgment reversed.
