Industrial Mechanical had a contract with Free Flow Cooling, Ltd

Industrial Mechanical had a contract with Free Flow Cooling, Ltd., a British company. Free Flow owed Industrial $171,974.44 for work Industrial had performed on a construction project in Texas. Free Flow did not pay Industrial, and Industrial filed suit against Siemens Energy & Automation as a guarantor or surety on the debt. Industrial alleges that Siemens is a surety based on a fax it received from Siemens on January 27, 1994. The fax is handwritten and states:
“We have received preliminary notices and we like [sic] to point out that the contract we have signed does not allow for such action to recourse [sic] with the customer. Please advise all subcontractors and suppliers that the only recourse that they will have is against Siemens.” The fax was signed “kind regards” by Arnold Schultz, Siemens’s senior project manager for the Texas construction project. Nowhere in the fax did Siemens guarantee the debt of any specified entity or state that Siemens was agreeing to indemnify anyone or pay the obligations on behalf of anyone else. The fax failed to identify the principal debtor whom Siemens purportedly agreed to indemnify and failed to state that Siemens agreed to answer for that entity’s debt. Can Industrial collect the amount of Free Flow’s debt from Siemens? Why or why not? [Industrial Mechanical, Inc. v Siemens Energy & Automation, Inc., 495 SE2d 103 (Ga App)]


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