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SMITH et al. v. FIRST NATIONAL BANK OF ATLANTA.
A91A0499.
CARLEY, Judge.
Action on contract. Whitfield Superior Court. Before Judge Pannell.
Appellant-defendants executed a guaranty agreement which was under seal and which provided, in relevant part, that it had been executed in "consideration of the sum of FIVE DOLLARS ($5.00) and other valuable considerations . . . ." When appellee-plaintiff brought suit on the agreement, appellants answered and asserted, among their other defenses, "that they [had] received no consideration in exchange [there]for . . . ." After discovery, cross-motions for summary judgment were filed. The trial court denied appellants' motion and granted summary judgment in favor of appellee. Appellants appeal from that order.
"[H]ere, where the contract is under seal, thus raising a presumption of consideration, [cit.], and a monetary amount is recited as consideration, the contract is valid notwithstanding the fact that [appellants were] not actually [paid] that amount. [Cit.]" Warthen v. Moore, 258 Ga. 198, 199-200 (1) (366 SE2d 666) (1988). The mere "fact that a recited cash consideration of a contract was not actually paid does not invalidate such contract. It creates an obligation to pay that sum, which can be enforced by the other party. [Cits.]" Nelson v. Woods, 205 Ga. 295, 296 (2) (53 SE2d 227) (1949). Accordingly, it is immaterial to appellants' liability that the agreement under seal did not itself recite their receipt of the stated cash consideration of $5 or that they did not actually receive that amount as consideration for their execution of the agreement. It follows that the trial court correctly denied appellants' motion for summary judgment and correctly granted summary judgment in favor of appellee.
McCamy, Phillips, Tuggle, Rollins & Fordham, C. Lee Daniel III, for appellee.
Finn, Cunningham & Hurtt, R. Scott Cunningham, for appellants.
DECIDED JUNE 4, 1991.
Thursday May 21 10:15 EDT


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