WHAT’S IN A NAME?
By Jack Burch July 20, 2018 Articles
Every once in a while a bond may be issued which does not precisely identify the obligee by its formal name. For example, it may identify the obligee as Big Contractor Company, when that is a trade name and the correct name of the obligee is ABC, Inc., d/b/a/ Big Contractor Company. Sometimes a bond may state that the principal is Electrical Contracting when in fact the correct name is Electrical Contracting of Georgia, Inc.
More rare, but once in a blue moon, the surety may not be precisely identified. For example, it may recite the name as Surety Casualty, when in fact it is really Surety Casualty Insurance Company of Massachusetts. Since bonds are subject to the Statute of Frauds, the question then becomes whether parole evidence can be introduced to correct a misnomer.
In the recent case Colonial Oil Indus., Inc. v. Lynchar, Inc., S17G1788, 2018 WL 3014466 (Ga. June 18, 2018), the Georgia Supreme Court held that testimony could be used to fix a misnomer caused by the use of a trade name in a guaranty, and that the Statute of Frauds did not bar a witness from testifying as to the identity of the real parties. Since there is no distinction in Georgia between suretyship and guaranty, under O.C.G.A. § 10-7-1, this holding applies to bonds.Read More