Paradies v. Universal C. I. T. Credit Corp. , 88 Ga. App. 75 ( 1953 )

Felton, J.

1. Since there is no brief of the evidence, this court will not determine whether the plaintiff should have made out a case against the defendant surety in the manner in which he would have been required to make out a case for a deficiency judgment against the principal; nor can it decide whether such a case was in fact made out under Barrett v. Distributors Group, 85 Ga. App. 529 (69 S. E. 2d, 810).

2. As against any assignment of error properly made, the exceptions to the sustaining of the demurrers to the answer and to the direction of a verdict are without merit. The surety-ship contract sued on is not susceptible to the construction that it was given solely to secure liabilities of Haber Motors brought about by the sale of floor-planned cars by Haber Motors without accounting to the plaintiff for the proceeds. The answer of the defendant was not sufficient to raise an ambiguity in the contract as to the defendant’s liability for the floor-plan chattel mortgages by which Haber Motors floor-planned the cars involved by executing chattel mortgages directly to the plaintiff. The only ambiguity raised by the answer was as to the question whether the term in the contract, “This contract covers cars handled on Trust Receipt and/or chattel mortgages,” included chattel mortgages executed and delivered to Haber Motors by purchasers of cars from Haber Motors and transferred to the plaintiff. Since the trial court excluded all chattel mortgages and conditional-sale contracts of this nature, the error in sustaining the demurrer to that part of the answer raising the question of whether the contract covered such obligations became harmless. The court directed a verdict for the items covered by the floor-plan chattel mortgages, and there was no error in so doing, since, as ruled in the first division, there is no brief of evidence and therefore no valid assignment of error on whether the plaintiff properly made out a case.

The court did not err in sustaining the demurrers to the answer or in directing a verdict.

Judgments affirmed.

Sutton, C. J., and Worrill, J., concur.