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Everts v. Century Supply Corp.11/18/2003
Century Supply Corp., d/b/a Century Rain Aid, filed a complaint against Clearwater Irrigation, Inc. and James Everts seeking recovery of the principal sum of $119,654.81. Century sued Clearwater on open account; Everts was sued as guarantor of Clearwater's account debt. The basic question is whether Century is barred from enforcing Everts' guarantee as a matter of waiver or estoppel. Answering this question in the negative, the trial court awarded summary judgment to Century. Everts appeals. Finding material issues of fact on Everts' waiver and estoppel defenses, we reverse.
It is undisputed that in May 1993, Everts and Karl Interrante incorporated Clearwater to conduct an irrigation installation and service business; that Interrante and Everts were officers, directors, shareholders, and employees of the company; that in July 1993, Interrante and Everts established an account with Century so that Clearwater could purchase business supplies; that as a condition of Century's extension of credit to Clearwater, Everts and Interrante were required to execute a personal guaranty of the debts of their closely held corporation; that the guaranty was, however, signed only by Everts; and that the form signed by Everts described the guaranty as "continuing and irrevocable."
Everts testified by affidavit that in November 1996 Interrante wrongfully terminated his employment with Clearwater and removed him as an officer, director, and shareholder; that, at that time, he contacted Century and other suppliers of Clearwater and advised them of Interrante's actions; and that various representatives of Century at its Norcross store, including the store manager Allison Wright, thereafter verbally assured him that he had been removed from the Clearwater account and would not be liable for future purchases made on the account. Everts subsequently sued Interrante for wrongful termination from Clearwater. That lawsuit was settled in 1999. Everts testified that based upon the assurances of the Clearwater representatives, he did not require Clearwater to close its account with Century.
Century filed this action against Everts and Clearwater in May 2001 for purchases made by Clearwater from September 1999 through January 2001. After obtaining a default judgment against Clearwater, Century filed a motion for summary judgment against Everts. The motion for summary judgment was supported by an affidavit in which the manager of Century's Norcross store testified that her name is Alicia Wright; that she has never been known as Allison Wright; and that neither she nor any of Century's other representatives at the Norcross location released Everts from his personal guaranty.
Everts argues that through its representatives, Century orally released him from the guaranty and is therefore barred from enforcing the guaranty under the doctrines of waiver and estoppel. Century argues that Everts has failed to identify any Century representatives who released him from the guaranty and that, in any event, the guaranty could not be rendered unenforceable as a matter of either waiver or estoppel because, by its own terms, the guaranty was irrevocable. We disagree with Century's arguments and reverse.
An oral agreement to release a debt may be enforceable if supported by consideration. " etrimental reliance supplies consideration as a matter of waiver and estoppel." " arties may waive contractual obligations through their conduct. [Cit.]" "Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon. [Cit.]. . . showing of prejudice to the other party appears to be the central requirement of waiver implied from conduct. [Cit.]"
Page 1 2 Georgia Employee Leasing Services
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