dissenting.
I wholeheartedly agree with the Court of Appeals and the trial court that National Duck Mills v. Catlin & Co., 10 Ga. App. 240 (73 SE 418) (1911) is inapplicable to the case at bar insofar as defenses to the individual guaranties Eire concerned. The judgment of this court can only be explained on the basis of some heretofore nonexistent rule, which, in my view, unduly expsinds the meaning of the term “estopped as a matter of law.” I respectfully dissent.
The majority recognizes the obvious: National Duck Mills is factually distinguishable from the case at bar in that appellees are attempting to assert defenses as guarantors of renewed obligations, not as makers. It believes, however, that such a distinction should not lead to a different result since 1) appellees themselves are responsible for the execution of the renewal note by the corporation and 2) the guaranty agreements signed by appellees expressly applied to renewals of the underlying obligation. I cannot agree.
The notion of “estoppel by silence” presents a basic question: silence regarding what? In National Duck Mills, the “silence” which gave rise to the estoppel was silence regarding defenses to the note which had been renewed. In the case at bar, the term “silence” has a far different meEining — it encompasses not only appellees’ failure to raise defenses to the guaranties at the time the underlying obligations were renewed, but also their failure to raise the guaranties themselves at a time when negotiations centered on the underlying obligations. To hold that the rule of National Duck Mills applies in the latter situation is to distort the case beyond all recognition. We therefore must examine the soundness of the “Yeager Enterprises” rule.
In my view, this newly fashioned rule does not stand scrutiny. On motion for summary judgment, “the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. H & H Wholesale *801Supply Co. v. White, 127 Ga. App. 707 (194 SE2d 609) and cits.” Davis v. Dickson, 232 Ga. 338, 339 (206 SE2d 473) (1974). “[W]here the facts relied on to establish the estoppel do not unequivocally show an estoppel in pais, the jury, and not the judge, should determine whether the facts constitute such an estoppel.” Tune v. Beeland, 131 Ga. 528 (3) (62 SE 976) (1908); Vines v. Citizens Trust Bank, 146 Ga. App. 845, 848 (247 SE2d 528) (1978).
It is entirely consistent with the allegations of the complaint and the evidence that appellants’ sole concern with regard to the renewal note was to salvage a series of agreements (i.e., the existing notes) which, due to fraudulent conduct on the part of certain bank employees, were subject to attack. The fact that different agreements (i.e., the guaranties) were not discussed at the time of the renewal of the corporate obligations does not unequivocally show an affirmation of them. The bank, of course, could have obtained a clarification of appellees’ position with regard to the guaranties. However, it was silent too.1
As indicated above, the majority also attaches great significance to the fact that the guaranty agreements signed by appellees expressly apply to renewals of the underlying obligations. The terms of the guaranty agreements, the argument goes, place appellees in the same position as guarantors of the corporate obligation that they occupy as makers of the renewal note on behalf of the corporation. I must reject this analysis because it presupposes the validity of the guaranty agreements. If appellees’ fraud defense is meritorious, the *802renewal provisions of the guaranty agreements would not be binding. See Thompson v. Wilkins, 143 Ga. App. 739, 740 (240 SE2d 183) (1977). “ ‘... Whether a note or other writing was procured by fraud is a question for the determination of a jury.’ [Cits.]” Lewis v. C. & S. Nat. Bank, 139 Ga. App. 855, 862 (229 SE2d 765) (1976).
I would hold that appellees, in their individual capacities, are not precluded as a matter of law from raising defenses to their guaranty agreements, notwithstanding that they renewed the underlying obligations in their corporate capacities.
I am authorized to state that Justice Gregory joins in this dissent.
“ ‘ “Since the whole doctrine [of estoppel] is a creature of equity and governed by equitable principles, it necessarily follows that the party who claims the benefit of an estoppel must not only have been free from fraud in the transaction, but must have acted in good faith and reasonable diligence; otherwise no equity will arise in his favor.” 2 Pomeroy’s Equity Jurisprudence (4 Ed.) § 813.’ Johnson v. Ellis, 172 Ga. 435(5) (158 SE 39). Estoppels are not favored. Code § 38-114; Parker v. Crosby, 150 Ga. 1 (102 SE 446); Cobb County Rural Elec. Mem. Corp. v. Bd. of Lights &c., 211 Ga. 535, 539 (87 SE2d 80); Travelodge Corp. v. Carwen Realty Co., 223 Ga. 821, 823 (1) (158 SE2d 378); Yancey v. Harris, 234 Ga. 320.” Perimeter Development Corp. v. Haynes, 234 Ga. 437, 440 (216 SE2d 581) (1975).
Had new guaranty agreements been signed by appellees or had the existing ones been expressly ratified, I would have no hesitation in finding an “estoppel by silence” as a matter of law. The rule that the renewal of a contract “cuts off all defenses of which the maker then had knowledge [and failed to reserve] ” (Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 127 (192 SE2d 513) (1972)), has been consistently applied against a party to a contract where the suit is on the contract that has been renewed. See Yawn v. Powell, 146 Ga. App. 554 (246 SE2d 737) (1978); Ameagle Contractors, Inc. v. Virginia Supply &c. Co., 144 Ga. App. 477 (241 SE2d 594) (1978); Massey v. Electrical Wholesalers, Inc., 137 Ga. App. 829 (224 SE2d 811) (1976). This, however, is not such a case.