concurring specially.
I concur fully in Divisions 1, 4 and 5. With respect to Division 2, I concur because there was never a reason for defendant Hathaway to affirmatively raise the statute of frauds defense in writing, under OCGA § 9-11-8 (c), either in his answer to the complaint or in the pretrial order.
The complaint did not allege that Hathaway was obligated as a guarantor, only that he and the corporation “jointly and severally entered into a lease of [the] property” and breached it by vacating the premises and failing to pay the rent. So there would be no reason to plead a statute of frauds defense in the answer. In the amended pretrial order, plaintiff alleged that Hathaway “also agreed to guarantee *874the obligations of the tenant under the lease,” and it was stipulated that one of the issues for trial was whether Hathaway so agreed. Plaintiff did not specify whether it was depending on a written guaranty or an oral guaranty, and Hathaway simply maintained that “he is not individually liable to the Plaintiff in any sum whatsoever.” At that point there was no reason to raise the affirmative defense. If plaintiff had so specified, it might have become incumbent on defendant to also seek an amendment of the pretrial order so as to raise the affirmative defense. See Dumas v. Beasley, 218 Ga. 349 (128 SE2d 59) (1962).
By a second amendment to the order plaintiff added as documentary evidence tó be offered at trial an unsigned guaranty showing Hathaway as a personal guarantor. Again there was no call for notice of a statute of frauds defense, as Hathaway’s defense to this written document was that he did not sign it. His counsel explained that position, at the beginning of trial, when plaintiff sought to exclude any evidence upon which a statute of frauds defense could be mounted. The allegation of an oral guaranty did not surface in the record until trial. The court expressly ruled that defendant could disclaim any oral promises (it not being disputed that he could deny signing a written guaranty) and plaintiff agreed, even though this would be evidence to support a statute of frauds defense, which is what plaintiff urged had been waived. As recognized by Hathaway, the statute of frauds would come up as a question of law at the conclusion of the evidence, and if there was evidence that Hathaway orally guaranteed the obligation and counter evidence that he did not do so, the statute of frauds would be applicable. It was not waived because the assertion that Hathaway orally guaranteed the corporation’s lease obligation was not made until trial. Plaintiff himself pointed out at trial in referring to his pretrial assertions as to guaranty, “what form of agreement that may be may be a question of fact.” There had not been an assertion that it was an oral agreement, so that only if plaintiff offered evidence of such would the affirmative defense of statute of frauds be ripe.
Consequently, defendant Hathaway should not have been deprived of an instruction to the jury on the statute of frauds as relatec to a promise to pay the debt of another.
With respect to Division 3, I concur except with the blanket statement that “oral guarantees are unenforceable under the statute of frauds.” That is true unless there has been a waiver of this defense by failing to affirmatively raise it when required to do so. See OCGA § 9-11-8 (c); Brantley Co. v. Simmons, 196 Ga. App. 233 (395 SE2c 656) (1990). Since the defense was properly raised at trial when the allegation of an oral guarantee was first presented in the record, there was no waiver of the defense provided in OCGA § 13-5-30 (2) and the *875charge was erroneous.
Decided October 4, 1994 Reconsideration denied October 19, 1994 — Awtrey & Parker, Dana L. Jackel, Gregg A. Landau, for appellant. Dorothy H. Bishop, Varner, Stephens, Wingfield & Humphries, William W. Hopson, for appellee.