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extended to them by Plaintiff. The language of the tri-party
agreement is clear and unambiguous and is merely an agreement
whereby this Defendant agreed to draw "any and all checks
from this date forward jointly to Ogolistics, Inc. and the
Plaintiff". The agreement further provided that it can be
voided only upon issuing a ten (10) day written notice from
the bank. The facts are undisputed that this Defendant stopped
payment on the check that was issued jointly to the Plaintiff
and Ogolistics., Inc. A guaranty is a promise to answer for
the debt, default, performance or miscarriage of another. A
mere request by one to give credit to another does not create
a legal liability to pay the debt. A guaranty of the debt or
a misrepresentation of the responsibility of the person to whom
the credit is given must exist in order to create a liability.
30 Fla. Jur., Suretyship and Guaranty, §32. It is clear by
the terms of the tri-party agreement that this Defendant did
not promise to answer for the debt, default or performance of
Ogolistics, Inc. There are no material facts in dispute as to
the tri-party agreement, since the instrument itself is clear-
. and unambiguous. As a matter of law, this tri-party agreement
d
does not constitute a guaranty. At the very most, the tri-
party agreement was only an assignment of progress payments to
Plaintiff due Ogolistics, Inc. from this Defendant in accordance
with the building contract between Ogolistics, Inc. and this
Defendant. Under this, the Defendant may be liable to the
Plaintiff only to the extent of the balance, if any, due
Ogolistics, Inc. of progress payments after deducting amounts
provided for in the building contract. George G. Tapper Co.,
~ Inc. v. Bank of Fort Walton, 117 So.2d 8 (Fla. 1st DCA 1959). -
It is thereupon,
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ORDERED and ADJUDGED that a summary judgment in favor
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of this Defendant as to Count II is granted.
Count III is an action for equitable relief for
specific performance and appointment of a receiver. -The affi-
davit in support of Defendant's motion shows that the ~
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