Charles Palermo Co., Inc. v. Wyant
| Decision Date | 03 November 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 530 S.W.2d 15 |
| Parties | CHARLES PALERMO COMPANY, INC., and Louis Pascuzzi, d/b/a Kansas City Fruit Company, Appellants, v. Will WYANT, Jr., d/b/a Will Wyant & Son, and Will Wyant, Sr., Respondents. 27047. |
| Court | Missouri Court of Appeals |
Bernard L. Balkin, Keith E. Witten, Achtenberg, Sandler & Balkin, Kansas City, for appellants.
Michael H. Maher, Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, for respondents.
Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.
This is a consolidated appeal by Charles Palermo Company, Inc., (Palermo) and Louis Pascuzzi from an adverse judgment following a trial without a jury.
Plaintiffs filed individual suits against Will Wyant, Sr. and Will Wyant, Jr. These suits were consolidated for trial in the trial court. The petitions in each suit were identical and alleged that Wyant, Jr. was engaged in the produce business in Kansas City and plaintiffs sold merchandise and produce to Wyant, Jr. from March 31, 1971, to about September 1, 1971. The petition further alleged in the case of Pascuzzi, a balance due of $8,761.60 for such purchases, and in the case of Palermo, a balance due of $3,921.75. The petitions alleged Wyant, Sr. unconditionally guaranteed the payment by Wyant, Jr. of the accounts alleged.
The evidence showed that Wyant, Sr. had been in the produce business in Kansas City for over fifty years at the time he retired in 1963. At that time the business was taken over by his son, Wyant, Jr., who was the sole proprietor. In early 1971, Wyant, Sr. learned of financial difficulty being experienced by his son in the business. Wyant, Sr. still had a deep attachment for the business and wanted to see his son succeed if possible.
Wyant, Sr. took it upon himself to make and deliver to both plaintiffs a guaranty. The guaranty delivered to each of the plaintiffs was in almost identical language. The one delivered to Pascuzzi read as follows:
'I will personally guarantee and pay off any increase of Indebtedness above balance owing you on March 1--71 by Will Wyant Jr if you agree to give Him chance to operate till 9--1--71 He to continue to trade with you I believe He can pay off the trade at least 500.00 per month total Indebtedness owing with your cooperation'
The one delivered to Palermo read as follows:
'I will personally guarantee guarantee (sic) to pay any increase of indebtedness owing you March 1--71 by my son Will Wyant Jr if you agree to give him chance to continue till 9--1--71 He to continue to trade with you I believe He can pay off to the trade at least $500.00 per month of indebtedness or more with your cooperation'
During the trial, evidence was offered concerning conversations which Wyant, Sr. had at the time the guaranty was delivered to Pascuzzi. Plaintiffs maintained from this evidence and from the language of the guaranty that there was no ambiguity and the guaranty clearly covered all purchases which Wyant, Jr. made from each plaintiff after March 1. Wyant, Sr. took the position the guaranty was not completely unambiguous but that it covered only any increase in the balance due which Wyant, Jr. owed to each plaintiff on September 1, 1971, over and above the balance due on March 1, 1971.
The evidence further showed that Wyant, Jr. had made purchases from Pascuzzi during the period of March 1 to September 1 of $15,728.80, and purchases from Palermo during such period totalling $4,443.80. The parties stipulated that on March 1, 1971, Wyant, Jr. owed Pascuzzi $8,429.75 and on September 1, 1971, his balance was $6,747.05. The balance due Palermo on March 1, 1971, was $7,237.35, and the balance on September 1, 1971, was $7,105.10. The evidence further showed payments by Wyant, Jr. during this period which accounts for the smaller balance on both accounts in September than in March.
The trial court made findings of fact and conclusions of law in which it was concluded Wyant, Sr.'s guaranty was not for all purchases made by Wyant, Jr. during the period in question, but extended only to any amount Wyant, Jr.'s indebtedness to either plaintiff on September 1, 1971, was over and above his indebtedness to either plaintiff on March 1, 1971. The court further found pursuant to the parties' stipulation that Wyant, Jr. actually owed less to each plaintiff on September 1, 1971, then he had on March 1 of that year.
Plaintiffs have appealed the judgment against them and in favor of both Wyant, Jr. and Wyant, Sr., but on this appeal brief only the alleged error in finding in favor of Wyant, Sr. The appeal as against Wyant, Jr. is, therefore, deemed to be abandoned. Komanetsky v. Missouri State Medical Association, 516 S.W.2d 545 (Mo.App.1974).
Plaintiffs urge on appeal that Wyant, Sr.'s guaranty was...
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...itself and neither a court nor the parties will be permitted to create an ambiguity where none exists. Charles Palermo Company, Inc. v. Wyant, 530 S.W.2d 15, 17(3) (Mo.App.1975). Although, as previously noted, the application for credit harbored no legal significance, the liability of the a......
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