Kraft Foodservice, Inc. v. Hardee

WELLS, Judge. Defendant argues that the trial court erred by granting defendant’s motion for summary judgment. After carefully examining the record before us, we must agree. Summary judgment is a device whereby judgment is rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” Dickens v. Thorne, 110 N.C. App. 39, 429 S.E.2d 176 (1993), N.C.R. Civ. P. 56(c). The pertinent facts surrounding the execution of the personal guaranty are undisputed. The guaranty agreement signed by defendant appears, in part, as follows: Personal Guaranty Contract To: Seaboard Foods, Inc. In consideration of your granting credit to the person(s), firm(s), corporation(s) (herein called customer) shown on the foregoing credit application for purchasing restaurant supplies and related items from time to time from you on an open account, I (we) the undersigned do thereby personally and unconditionally guarantee without notice the payment of all sums that shall become due from the customer to you for goods sold and delivered at all locations of the customer, regardless of trade style. (Emphasis added.) The agreement also states: “This guaranty shall bind the heirs, executors, legal representatives, successors and assigns of the undersigned.” Plaintiff contends that the guaranty addressed to Seaboard is a general guaranty, and therefore assignable under general contract principles. Defendant argues, however, that the guaranty is [814] a special guaranty, enforceable only by the person to whom it is addressed, and therefore not assignable by Seaboard. We are persuaded by defendant’s argument. Generally, a guaranty is assignable where the language of the guaranty contract shows that the parties intended it to be assignable. Gillespie v. De Witt, 53 N.C. App. 252, 280 S.E.2d 736, cert. denied, 304 N.C. 390, 285 S.E.2d 832 (1981). This Court discussed the distinctions between a general guaranty and a special guaranty in Palm Beach, Inc. v. Allen, 91 N.C. App. 115, 370 S.E.2d 440 (1988). “A general guaranty which is addressed to no specific person, authorizes anyone to whom it is presented to extend credit upon its strength, and is enforceable by anyone who acts upon it, whereas a special guaranty . . . may only be enforced by the person to whom the guaranty is extended, that is, the person to whom it is addressed.” Id. The guaranty in the case sub judice was specifically addressed to Seaboard Foods, Inc. The agreement makes reference to “you” and “your” repeatedly, obviously referring to Seaboard Foods. Additionally, the agreement specifically states that it is assignable by defendant, but makes no mention of assignability by Seaboard Foods. We are convinced that the guaranty agreement in the case at bar was a special guaranty extended only to Seaboard Foods, Inc., and was not enforceable by plaintiff as Seaboard’s assignee or successor. Therefore, we reverse the order of the trial court and remand for entry of summary judgment in favor of defendant. Reversed and remanded. Judges JOHNSON and JOHN concur.