Edwards v. Heidelbaugh

• Decision Date: 24 October 1978
• Docket Number: No. 39803,39803
• Citation: 574 S.W.2d 25
• Parties: Richard P. EDWARDS, Respondent, v. George F. HEIDELBAUGH, Jr., Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 25

574 S.W.2d 25

Richard P. EDWARDS, Respondent, v. George F. HEIDELBAUGH, Jr., Appellant.

No. 39803.

Missouri Court of Appeals, St. Louis District, Division Three.

Oct. 24, 1978.

Schlechter & Zerman, Allan H. Zerman, David V. Collignon, Clayton, for appellant.

Armstrong, Teasdale, Kramer & Vaughn, Frederick H. Mayer, St. Louis, for respondent.

REINHARD, Judge.

This is an appeal from a summary judgment entered in the trial court under Rule 74.04, V.A.M.R., in favor of the plaintiff and against the defendant as the result of defendant's personal guaranty of a promissory note. Judgment was entered in the amount of $30,008.00. On appeal defendant submits that the trial court erred in rendering summary judgment because there remains a genuine issue of fact as to the lack of consideration for his personal guaranty and therefore plaintiff was not entitled to a judgment as a matter of law.

From the record we learn that M.A.R. Promotions, Inc. (hereinafter called M.A.R.) was a corporation formed to promote and operate Mid-America Raceways in Wentzville, Missouri. Defendant was an officer and a major shareholder in M.A.R. In June of 1976, M.A.R. contacted plaintiff, who was doing business as Midwest EON, for the purpose of having plaintiff become a co-sponsor of a USAC champion stock car race which was to be held on July 4, 1976, in Wentzville. On June 22, 1976, M.A.R. executed a sponsorship agreement for the aforementioned race, which was to be called the "EON Bicentennial 250". Also on that date M.A.R., by its officers, executed a promissory note payable to plaintiff in the amount of $31,680.00. Plaintiff signed the sponsorship agreement on June 23, 1976. Also on June 23, 1976, a personal guaranty was given to plaintiff by defendant and another officer of M.A.R. which plaintiff alleges was to insure payment of the note.

The race was held as planned; however, it was not a financial success. On July 6, 1976, M.A.R. made a payment of $4,400.00 to plaintiff. No further payments were made. Plaintiff then filed suit against defendant based on the personal guaranty.

Plaintiff's petition alleged that M.A.R., for value received, executed and delivered to plaintiff a promissory note in the amount of $31,680.00 payable on demand and if no demand is made then payable on July 6, 1976. The petition further alleged that there has been credited on the note a payment in the sum of $4,400.00. The petition also alleged that the note provided for 10% Attorney fees if placed in the hands of an attorney for collection, which it alleged was done. The petition further alleged that "On or about June 23, 1976, contemporaneous with the execution of the promissory note attached hereto as Exhibit 'A', and in consideration thereof, defendant George E. (sic) Heidelbaugh, Jr., signed a guaranty, a copy of which is attached hereto, marked as Exhibit 'B;' (sic) and incorporated herein." The petition further alleged that the unpaid balance including the attorney fees is $30,008.00, and that plaintiff has made demand upon defendant for the payment of said sum and defendant has refused to pay.

The transcript does not contain defendant's original answer but his first amended answer, filed subsequent to the motion for summary judgment, denies generally most of the allegations in the petition and states "that with regards (sic) to Paragraph 6 of the Plaintiff's Petition there is a total lack of consideration to support the alleged guaranty."

The principles of law governing the appellate review of summary judgments are quite settled. In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the parties against whom the motion was filed and the judgment was rendered, and to accord to such parties the benefit of every doubt. Phegley v. Porter-DeWitt Construction Co., 501 S.W.2d 859, 863 (Mo.App.1973); Pagan v. City of Kennett, 427 S.W.2d 251, 252 (Mo.App.1968). A summary judgment may only be rendered where it is made manifest by the pleadings, deposition and admissions on file, together with any affidavits, that there is no genuine issue of material fact. Rule 74.04(c); Phegley, supra at 863. A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts. Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), Cert. den., 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688. The burden rests upon the movant (in this case upon the plaintiff) to show by "unassailable proof" that there is no genuine issue of fact. Rule 74.04(h); Phegley, supra at 863.

Plaintiff's motion for summary judgment relied upon the pleadings, deposition, answers to interrogatories and admissions on file. Defendant did not respond to the motion, but argues that there remains a genuine issue of fact as to the lack of consideration for his personal guaranty, and therefore that plaintiff was not entitled to a judgment as a matter of law. The only issue raised was whether the guaranty was executed contemporaneously with the contract and therefore whether there was the necessary consideration to support the guaranty.

A guaranty is a separate independent contract and requires consideration. A contract of guaranty when executed contemporaneously with the original contract may be considered part of the original contract and hence, may be supported by the same consideration. Tri-State Lumber & Shingle Co. v. Proctor, 233 Mo.App. 1207, 128 S.W.2d 1116, 1121 (1939); Great Western Printing Co. v. Belcher, 127 Mo.App. 133, 104 S.W. 894, 895 (1907). As stated in Great Western Printing Co., supra, ...