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JACKSON et al. v. COLLEGE PARK SUPPLY COMPANY.
52869.
Action on notes. Henry Superior Court. Before Judge Whitmire.
DEEN, Presiding Judge.
The trial judge, sitting as the finder of fact, found: ". . . [T]hat College Park Supply Company sold certain building materials and supplies to Jackson Construction Co., Inc., on open account. That the Defendant, R. Dan Jackson, is President of Jackson Construction Co., Inc. Thereafter Jackson Construction Co. Inc., executed certain notes to College Park Supply Company, said notes being executed by R. Dan Jackson, President. On April 1, 1974, R. Dan Jackson executed an instrument in favor of College Park Supply Company designated 'Guaranty' reciting a promise to pay for goods and merchandise sold and delivered by College Park Supply Company to Jackson Construction Co., Inc., and reciting further 'the undersigned, Guarantor, further agrees to pay said balance to College Park Supply Company when it becomes due and is not paid.' I find that certain security deeds were given to secure various notes and that some of the property pledged had prior outstanding security obligations covering same. When some of the prior security deeds were foreclosed the security was exhausted."
1. Construction of the contract as one of suretyship was correct. Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 33 (16 SE2d 909); Fagelson v. Pfister Aluminum Corp., 109 Ga. App. 663 (137 SE2d 313).
2. Nor did the court err in finding there to be no discharge of the appellant on his contract of suretyship. The notes accepted by the appellee as security for the indebtedness were signed by the appellant. Woolfolk v. Mathews, 54 Ga. App. 694 (188 SE 729); it was therefore not "without the consent of the surety" as contemplated by Code 103-202. Nor does the fact that the notes were accepted as additional security discharge the appellant. W. T. Rawleigh Co. v. Overstreet, 71 Ga. App. 873, 882 (32 SE2d 574).
3. The fact that some of the property covered by the security deeds to the appellee were subject to prior outstanding security obligations and were released when the security was exhausted does not serve to discharge the appellant. Jones v. Hawkins, 60 Ga. 52, 55.
Judgment affirmed. Webb and Smith, JJ., concur.
Northcutt, Edwards & Germano, Jay Y. McClure, for appellee.
Johnston & McCarter, John M. McCarter, for appellants.
SUBMITTED OCTOBER 4, 1976 -- DECIDED OCTOBER 22, 1976.
Friday May 22 08:14 EDT


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