Berger v. Mercantile National Bank

231 Ga. 680 (1974)

203 S.E.2d 479

BERGER v. MERCANTILE NATIONAL BANK.

28482.

Supreme Court of Georgia.

Argued January 16, 1974.

Decided February 7, 1974.

Kaler, Karesh & Frankel, Jerry L. Sims, for appellant.

Haas, Holland, Levison & Gibert, Harold D. Corlew, Roland Stokes Neeson, Sr., Barry J. Weiner, for appellee.

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.