Diaz v. Goodwin Bros. Leasing, Inc.
| Decision Date | 28 June 1974 |
| Parties | 14 UCC Rep.Serv. 1478 Dr. Mariano DIAZ et al., Appellants, v. GOODWIN BROTHERS LEASING, INC., Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Cecil Davenport, Louisville, for appellants.
Phillip D. Scott, McDonald, Alford & Roszell, Lexington, for appellee.
This is an appeal from a judgment rendered against appellants Doctor and Mrs. Mariano Diaz and Doctor and Mrs. Tomas Yanes, who were guarantors of the performance by Lucky Five, Inc. of the terms of a lease of restaurant equipment, which lease it entered into with appellee Goodwin Brothers Leasing, Inc. We affirm.
Appellants argue that because the guaranty was signed on a Sunday it is illegal and unenforceable. This defense was not affirmatively pleaded; it may not be relied on. CR 8.03; Crowder v. Stinson, Ky., 401 S.W.2d 761 (1966).
The leased equipment was sold at private sale after Lucky Five had failed to pay the rent and after demand for payment from the guarantors had been ignored. The guarantors argue that Goodwin Brothers should have given them notice before the 'collateral' was sold. Neither the lease nor the guarantee agreement provided that Goodwin Brothers should give such notice. Appellants, however, argue that notice was required by KRS 355.9--504(3), but appellees say that no security agreement was involved. KRS 355.1--201(37) provides:
'* * * Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.'
The terms of the lease involved in this suit provided that,
'Upon the expiration or earlier termination of this lease, lessee, at its expense, shall return the equipment in good repair, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering it packed and ready for shipment, to such place or carrier as lessor may specify.
'If lessee fails to pay any rent or other amount herein provided within ten (10) days after the same is due and payable, or if lessee fails to perform any other provision hereof within ten (10) days after lessor shall have demanded in writing performance thereof, or if any proceeding in...
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