Berger v. Mercantile National Bank

Supreme Court of Georgia

Berger v. Mercantile National Bank

203 S.E.2d 479, 231 Ga. 680, 1974 Ga. LEXIS 1187

CourtSupreme Court of Georgia

DecidedFebruary 7, 1974

Docket28482

StatusPublished

Cited by6 cases

This text of 203 S.E.2d 479 (Berger v. Mercantile National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berger v. Mercantile National Bank, 203 S.E.2d 479, 231 Ga. 680, 1974 Ga. LEXIS 1187 (Ga. 1974).

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Opinion

Undercofler, Justice.

This case is here on certiorari to the Court of Appeals. For a statement of facts see Mercantile Nat. Bank v. Berger, 129 Ga. App. 707 (200 SE2d 921). Held:

We disagree with the ruling in Division 1 of the Court of Appeals opinion and reverse that ruling. The defendant (applicant here) showed he was an accommodation maker on the negotiable note which he signed and on which the payee brought suit. Code Ann. § 109A-3 — 415 (Ga. L. 1962, pp. 156, 262). Thus, as between the original parties to the transaction he was a surety for the maker of the note. Accordingly under the Uniform Commercial Code all written agreements executed at the same time as part of the same transaction are admissible in this action between the original parties. Code Ann. § 109A-3 — 119 (Ga. L. 1962, pp. 156, 246). This is consistent with general contract law. Dyal v. Foy & Shemwell, 159 Ga. 848 (126 SE 783). However, we affirm the Court of Appeals judgment because the defendant’s surety agreement contains a general waiver which, in our opinion, prevents him from asserting the defense which he raised. See Greene v. Bank of Upson, 231 Ga. 287 (201 SE2d 463).

Judgment affirmed.

All the Justices concur.

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Undercofler, Justice.

This case is here on certiorari to the Court of Appeals. For a statement of facts see Mercantile Nat. Bank v. Berger, 129 Ga. App. 707 (200 SE2d 921). Held:

We disagree with the ruling in Division 1 of the Court of Appeals opinion and reverse that ruling. The defendant (applicant here) showed he was an accommodation maker on the negotiable note which he signed and on which the payee brought suit. Code Ann. § 109A-3 — 415 (Ga. L. 1962, pp. 156, 262). Thus, as between the original parties to the transaction he was a surety for the maker of the note. Accordingly under the Uniform Commercial Code all written agreements executed at the same time as part of the same transaction are admissible in this action between the original parties. Code Ann. § 109A-3 — 119 (Ga. L. 1962, pp. 156, 246). This is consistent with general contract law. Dyal v. Foy & Shemwell, 159 Ga. 848 (126 SE 783). However, we affirm the Court of Appeals judgment because the defendant’s surety agreement contains a general waiver which, in our opinion, prevents him from asserting the defense which he raised. See Greene v. Bank of Upson, 231 Ga. 287 (201 SE2d 463).

Judgment affirmed.

All the Justices concur.

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203 S.E.2d 479, 231 Ga. 680, 1974 Ga. LEXIS 1187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-mercantile-national-bank-ga-1974.

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