American Petrofina Co. of Texas v. Bryan, 6389

• Decision Date: 12 February 1975
• Docket Number: No. 6389,6389
• Citation: 519 S.W.2d 484
• Parties: AMERICAN PETROFINA COMPANY OF TEXAS, Appellant, v. Jerry W. BRYAN and H. P. Bryan, Jr., Appellees.
• Court: Texas Court of Appeals

Page 484

519 S.W.2d 484

AMERICAN PETROFINA COMPANY OF TEXAS, Appellant, v. Jerry W. BRYAN and H. P. Bryan, Jr., Appellees.

No. 6389.

Court of Civil Appeals of Texas El Paso.

Feb. 12, 1975.

Stubbeman, McRae, Sealy, Laughlin & Browder, Harrell Feldt, Cotton, Bledsoe, Tighe & Morrow, Charles Tighe, Midland, Walker W. Smith, Dallas, for appellant.

Walter M. Holcombe, Pecos, Lawrence L. Fuller, Monahans, for appellees.

OPINION

WARD, Justice.

American Petrofina Company of Texas sued Bryan Brothers Oil Company, Inc. upon a sworn account and sued the two brothers, Jerry W. Bryan and H. P. Bryan, Jr., upon a written guaranty executed by them covering the account. Upon stipulation being entered, judgment was rendered against the defendant corporation on the debt in the amount of $49,864.59. Trial was to a jury upon issues made concerning the written guaranty and after the verdict was returned in favor of the two individual defendants, a take-nothing judgment was entered against the plaintiff. The plaintiff appeals from this unfavorable part of the judgment contending that the two brothers were individually liable as a matter of law under the terms of the guaranty, and that all parol evidence offered to vary or explain the terms of the guaranty was inadmissible. We agree with the plaintiff, and reverse and render.

In 1970, the two Bryan brothers purchased the corporate stock and assets of McMurry Oil Company, Inc. and at the same time entered into other contracts whereby their corporation became a distributor and jobber for American Petrofina Company of Texas. One of the instruments executed with American Petrofina at that time was the guaranty of account which is the subject of this controversy. It is a mimeographed letter addressed to American Petrofina Company of Texas with certain blanks filled in by typewriter and is herein copied:

'To induce you to sell gasoline and other petroleum products to McMurry Oil Company, Inc., of Pecos, Texas, (hereinafter referred to as the Principal), I hereby guarantee to you the payment of such sum or sums now due and as may at any time, and from time to time, become due to you from the Principal, not to exceed at any one time the sum of $ Requirements, for gasoline and petroleum products so sold to the Principal by you, and whether the indebtedness of the Principal is upon open account or evidenced by a note or notes or other evidence of such purchases made by the Principal. You are at liberty to give the Principal at any time, and from time to time, such extension of credit as you think proper, for which this shall be a continuing guaranty for sales made by you to the Principal, which were made prior to the time you shall receive written notice from me cancelling this guaranty.

'I covenant and agree that jointly with the Principal and severally I shall be liable and responsible for and shall pay to you all sums that may be due or become due by the Principal promptly upon demand, regardless of the sum of the indebtedness, whether the same is represented by open account, notes or otherwise, or whether due at maturity or upon extensions or renewals thereof, and that the terms agreed upon by you and the Principal shall be fully binding upon me without notice. I expressly waive all pleas of discussion and division and all notice of the acceptance of this guaranty; I further waive all notices of the execution of notes and the advance of credits regardless of the forms thereof; and also waive notice of nonpayment when due or at maturity or upon extension or renewal of said open account, notes or other forms of indebtedness; and further waive notice of renewals or extensions of all such open accounts or other forms of indebtedness and all notice of changes in the form of indebtedness.

'WITNESS my hand this 15th day of July, 1970.

'/s/ H. P. Bryan, Jr.

(Signature)

Pres.

(Title)

'/s/ Jerry W. Bryan

(Signature)

Sect.

(Title)'

Following the signatures there is a written acceptance by American Petrofina Company of Texas.

It was stipulated upon the trial that after the execution of the guaranty there was a simple name change made regarding the corporation from McMurry Oil Company, Inc. to Bryan Brothers Oil Company, Inc., and the basis of the open account debt as stipulated was for goods sold to the Principal by American Petrofina Company of Texas.

The only defense urged by the Appellees and applicable to this appeal was that the brothers did not intend to be personally bound by the guaranty. No equitable contention is made, such as fraud, duress or mistake, nor is any claim such as lack of consideration urged as a defense to personal liability under the terms of the agreement. No contention is made by the Appellees that there is any ambiguity in the language contained in the guaranty agreement itself . They do claim that the agreement was not meant to be an obligation of the individual brothers and that the designations of 'Pres.' and 'Sect.' after the signatures bind only the corporation or create an ambiguity that can be explained by extrinsic evidence that they intended only to be bound in their corporate capacities and not individually. Parol testimony was offered to this effect which was...