Anderson v. Meier, 5578
Decision Date | 26 February 1982 |
Docket Number | No. 5578,5578 |
Citation | 641 P.2d 187 |
Parties | C. L. ANDERSON, Richard A. Fait and F. M. Rosemore, Appellants (Defendants), v. Harold E. MEIER and C. Paul Anderson, Appellees (Plaintiffs). |
Court | Wyoming Supreme Court |
David A. Scott and Lee E. Karavitis of Murane & Bostwick, Casper, for appellants.
G. Joseph Cardine of Cardine, Meenan & Marken, Casper, for appellees.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
Appellants-defendants appeal from a summary judgment entered against them in an action on a $120,000.00 promissory note. The $120,000.00 was part of the consideration to be paid by appellants to appellees-plaintiffs for purchase of the latter's shares of stock in the Western National Bank of Lovell, Lovell, Wyoming. Appellants had also moved for a summary judgment and had counterclaimed for $176,962.00, said to be the amount of loss resulting from inability to collect on two loans to bank customers. Appellants contend that appellees guaranteed the notes representing such loans to be enforceable and legally valid. The trial court did not find such guaranty.
In addition to allowing recovery for the $120,000.00 with interest, the summary judgment awarded recovery to appellees of attorney fees in the amount of $12,901.85. Two issues are involved in this appeal. Did the appellees guarantee enforceability of the notes? and, Were the attorney fees properly allowed in the summary judgment?
We affirm.
The agreement between the parties for purchase and sale of the bank stock reads in pertinent part:
At the outset, we must examine that which appellants contend with reference to the guaranty in paragraph 3 of the agreement. In their answer, they refer to the guaranty as one of
"legality and enforceability of all outstanding documents * * * pertaining to loans made to third parties by the bank which were outstanding at the time the said 'Letter of Intent' was executed, including the validity and enforceability of all security agreements pertaining to said loans." (Emphasis added.)
In their brief, appellants contend the guaranty to be "that each instrument was legally valid " (emphasis added), but that the guaranty was not "of collection or collectability (sic)."
To prevail in their action, it seems that appellants must establish the guaranty to be one of collectibility. Indeed, it is difficult to discern the distinction between "collectibility" and "enforceability" and "legally valid" when applied to the circumstances relative to the notes of the two bank customers.
Both notes resulted in litigation. 1 In one of the instances (hereinafter referred to as Moncur note), a jury denied recovery on the note 2 because it found that the bank damaged the makers by breaching an agreement to extend a line of credit to the makers. 3
In the other instance (hereinafter referred to as Mangus note), an attempt to proceed against the security for the note was defeated when the court found that the Internal Revenue Service had priority inasmuch as the bank had filed the financing statements in the wrong county.
If the losses resulting from the litigation in these two instances were subject to recovery from appellees under the guaranty, the guaranty would be one of collectibility. Appellants are endeavoring to collect the notes from appellees. The notes were not faulty in themselves. They were simply not "collectible" from the makers. One because of a breach of a separate arrangement and the other because of the failure of security. Recovery on them from appellees as requested in appellants' counterclaim would require an interpretation of the guaranty to be one of "collectibility."
Was it? The guaranty was that "the instrument is what it purports to be." Purport is defined:
73 C.J.S. Purport, pp. 1259-1260.
" * * * 'Purport' * * * means 'to have the appearance or convey the impression of being, meaning, or signifying some particular thing; * * *.' " State v. W. S. Buck Mercantile Co., 36 Wyo. 47, 264 P. 1023, 1030 (1928).
" * * * The purport of a written instrument is usually its meaning; what it intends to show; what is apparent; what it shows on its face. * * * " Swanson v. Pontralo, 238 Iowa 693, 27 N.W.2d 21, 24 (1947).
" * * * The word 'purport' is generally used in connection with the discussion of a written instrument to show its meaning as it appears on the face of the instrument. * * * " Hall v. State, 95 Okl.Cr. 284, 245 P.2d 132, 134 (1952).
* * * "McCraney v. Glos, 222 Ill. 628, 78 N.E. 921, 923 (1906).
" * * * 'The purport of an instrument means the substance of it as it appears on the face of it, in the eyes of all who read it' * * *." Roberts v. State, 72 Miss. 110, 16 So. 233, 234 (1894); Thomas v. State, 103 Ind. 419, 2 N.E. 808, 812 (1885); State v. Chinn, 142 Mo. 507, 44 S.W. 245, 246 (1898).
Black's Law Dictionary, p. 1093 (5th Ed. 1979).
On their faces, both customer instruments appeared to be promissory notes. They claimed to be promissory notes. They had the appearance and conveyed the impression of being promissory notes. In the eyes of all who read them, the substance of the instruments are those of promissory notes. In short, they "purport" to be promissory notes. Appellees' guarantee was that they would be that which they import, i.e., promissory notes.
And they are promissory notes. They were signed by the makers. They were payable to the bank. They contained an Pursuant to § 34-21-302, W.S.1977, "note" is defined further in the context of negotiable instruments in § 34-21-304, W.S.1977, which provides in pertinent part:
unconditional promise to pay a sum certain in money and they contained no other promise, order, obligation or power. They were not certificates of deposits.
Appellants do not contest the genuineness of the signatures on the Moncur and Mangus notes. They do not contend that the instruments are falsely made or forged. They do suggest that the promise to pay in the Moncur note was not unconditional since the bank had a separate understanding with the makers relative to a line of credit. In this suggestion, appellants overlook the plain language of § 34-21-304(a)(ii), W.S.1977 that requires the note to contain "an unconditional promise" and "no other promise * * *." The Moncur note did contain an unconditional promise and no other promise. Section 34-21-305, W.S.1977 provides:
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