Deep South Services, Inc. v. Wade

286 S.E.2d 315, 160 Ga. App. 65, 1981 Ga. App. LEXIS 2880

Opinion

McMurray, Presiding Judge.

The Supreme Court, in Deep South Services v. Wade, 248 Ga. 80, reversed our judgment in Deep South Services v. Wade, 158 Ga. App. 158 (279 SE2d 340), affirming the trial court in its grant of summary judgment in favor of the plaintiff against the defendants. In that case the Supreme Court has clarified the law as set forth in the UCC § 3-408 (Code Ann. § 109A-3 — 408; Ga. L. 1962, pp. 156, 260) holding therein that while consideration is not necessary for an instrument given in payment of or as security for an antecedent obligation nevertheless where there is a defense of failure of consideration (partial or complete) this is a distinct defense other than lack of consideration, and where additional consideration is in fact promised there can be a failure of such consideration “which is a defense pro tanto,” and the terms lack or want and failure of consideration are not synonymous and should not be used interchangeably. The Supreme Court noted that both the note and guaranty began with the traditional phrase, “ ‘For value received’,” without specifying the consideration, hence parol evidence would be admissible in establishing same, citing Pitts v. Allen, 72 Ga. 69 (2) and Waller v. Martin-Senour Co., 45 Ga. App. 808 (2) (166 SE 53), and that the trial court erred in granting summary judgment as to the note. Accordingly, our judgment of affirmance and opinion therein in Deep South Services v. Wade, 158 Ga. App. 156, supra, is vacated and the opinion of the Supreme Court in Deep South Services v. Wade, 248 Ga. 80, supra, is made the judgment of this court which requires the reversal of the trial court.

Decided October 15, 1981. Stanley C. Coker, for appellants. H. William Cohen, for appellee.

Judgment reversed.

Quillian, C. J., and Pope, J., concur.