Barclay v. Waxahachie Bank & Trust Co.

• Decision Date: 30 June 1978
• Docket Number: No. 5900,5900
• Citation: 568 S.W.2d 721
• Parties: Louise Dunaway BARCLAY, Appellant, v. WAXAHACHIE BANK & TRUST CO. et al., Appellees.
• Court: Texas Court of Appeals

Page 721

568 S.W.2d 721

Louise Dunaway BARCLAY, Appellant, v. WAXAHACHIE BANK & TRUST CO. et al., Appellees.

No. 5900.

Court of Civil Appeals of Texas,Waco.

June 30, 1978.

Rehearing Denied Aug. 3, 1978.

Warwick H. Jenkins, Jenkins & Jenkins, Waxahachie, for appellant.

Matt Dawson, Waco, Patrick F. McGowan, Rowland Foster, Strasburger & Price, Dallas, for appellees.

OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Barclay from Summary Judgment fixing liability, and from final judgment of $162,597.74, for plaintiff Waxahachie Bank & Trust on a guaranty on a note.

Plaintiff Bank sued Billy Phil Ganaway Feedlots, Inc., Billy Phil Ganaway and Bill Ganaway on a promissory note for $154,584.89, and defendant Barclay on a written guaranty of such note.

Defendant Barclay plead want of consideration, failure of consideration, estoppel because of concealment of material facts, and denied liability both as to principal amount and attorneys' fees. Defendant further counterclaimed against plaintiff and cross acted against Lynn B. Griffith, Attorney for plaintiff, alleging Griffith was an officer in plaintiff Bank and also her attorney; that when she executed the guaranty she did not know the Ganaways owed plaintiff an additional $100,000. note secured by a Deed of Trust on 210 acres; that Griffith knew of this and did not advise her of same; that had she known of same she would not have executed the guaranty on the $154,584. note; that Griffith's conduct in not advising her was unconscionable action and/or fraud which entitles her to damages and exemplary damages.

Plaintiff and Third-Party Defendant Griffith moved for summary judgment which the trial court granted, and rendered interlocutory summary judgment for plaintiff and Griffith as to liability, reserving for trial on the merits the issues of plaintiff's damages and attorneys' fees.

Thereafter, at hearing on the merits the trial court rendered final judgment for plaintiff Bank for $162,597.74 against all defendants (after crediting a $46,652.12 payment made by the Ganaways; but including $17,500. awarded as attorneys' fees); and further decreed cross-plaintiff Barclay take nothing by her cross actions and counterclaims against cross-defendant Bank and Third-Party defendant Griffith.

The Ganaways have not appealed.

Defendant Barclay appeals on 12 points.

Points 1 through 3 contend the trial court erred in granting summary judgment against defendant because plaintiff failed to establish it was the owner and holder of the note, and because plaintiff did not attach the originals or certified copies of the note and guaranty instrument to its summary judgment affidavit.

Defendant asserts that without the note and guaranty instrument or certified copies thereof, plaintiff has failed to meet its burden of proof as to ownership, possession and status of the note, citing Perkins v. Crittenden, Tex., 462 S.W.2d 565.

Plaintiff's suit here was against defendant upon her guaranty of the Ganaway's $154,584. note. On summary judgment as to liability it was plaintiff's burden to prove:

1) The existence and ownership of the contract.

2) The performance of the terms of the contract by plaintiff.

3) The occurrence of the condition on which liability is based.

4) The failure or refusal to perform the promise by the guarantor, (13 Tex.Jur.2d § 390, p. 666).

The existence and ownership of the guaranty contract was proved by Mrs. Barclay's answer and counterclaim; and by Mrs. Barclay's affidavit in response to motion for summary judgment which attached a certified copy of such guaranty. See DeBord v. Muller, Tex., 446 S.W.2d 299.

The record is without dispute that the plaintiff performed its part of the contract by loaning the Ganaways the money to pay off a note owed to the Citizens Bank of Waxahachie.

The occurrence of the condition on which liability is based, the failure of the Ganaways to pay the note, is proved by the depositions of Billy Phil Ganaway and Mrs. Barclay.

Mrs. Barclay admitted by her pleadings and deposition that she had not performed the promise made by the guaranty.

Points 1 through 3 are overruled.

Points 4 through 8 contend the trial court erred in granting summary judgment against defendant: because defendant raised defense to the guaranty by her counterclaim and cross action and supported same by proof; by holding as a matter of law defendant was not an accommodation maker; by holding as a matter of law the guaranty was supported by consideration; and by holding as a matter of law the consideration had not failed.

Mrs. Barclay was a long time friend of the Ganaways. Bill Ganaway had been her father's, hers, and her husband's farm manager, and for many years shared an office with her. In the early 1960's Billy Phil Ganaway, son of Bill Ganaway, went into the cattle feed lot business and from the beginning borrowed and/or owed considerable sums of money. In 1968 he owed the Citizens National Bank in Waxahachie large sums of money, and they were financing his purchase of feed for the feed lot operation. On August 21, 1968 Mrs. Barclay executed a guaranty agreement to the Citizens Bank guaranteeing funds advanced to Billy Phil Ganaway up to $150,000. (plus interest). The letter of guaranty recites it shall be a continuing and irrevocable letter of guaranty; apply to advancements thereafter made to Ganaway; and continue until written notice of revocation be delivered to the Bank.

In early January 1974 Billy Phil Ganaway borrowed $100,000. from Waxahachie Bank & Trust to pay off miscellaneous debts and secured such note with a Deed of Trust on 210 acres of land.

At this time Ganaway owed the Citizens Bank a total of $154,584. (and of which Mrs. Barclay was guarantor). Ganaway decided to move the loan to the Waxahachie Bank & Trust and asked Mrs. Barclay if she minded. She said she did not. On February 1, 1974 the Ganaways signed a note to the Waxahachie Bank & Trust for $154,584.69 to be paid in 1 year; and contemporaneously Mrs. Barclay executed a letter of guaranty to the Bank: "I Louise Dunaway Barclay, for and in consideration of your extending credit to Billy Phil Ganaway and/or Billy Phil Ganaway Feedlot, Inc., in a sum not to exceed $160,000.00, do hereby guarantee...