Fewox v. Tallahassee Bank & Trust Co., N--258

• Decision Date: 01 June 1971
• Docket Number: No. N--258,N--258
• Citation: 249 So.2d 55
• Court: Florida District Court of Appeals
• Parties: 9 UCC Rep.Serv. 476 Robert D. FEWOX and Ann C. Fewox, Appellants, v. The TALLAHASSEE BANK & TRUST COMPANY, a Florida Banking Corporation, Appellee.

Page 55

249 So.2d 55

9 UCC Rep.Serv. 476

Robert D. FEWOX and Ann C. Fewox, Appellants, v. The TALLAHASSEE BANK & TRUST COMPANY, a Florida Banking Corporation, Appellee.

No. N--258.

District Court of Appeal of Florida, First District.

June 1, 1971.

Rehearing Denied June 28, 1971.

W. J. Oven, Jr., Tallahassee, for appellants.

Parker, Foster & Madigan, Tallahassee, for appellee.

SPECTOR, Judge.

Appellants seek reversal of a summary final judgment entered against them in favor of the appellee bank.

This controversy arose out of the financial collapse of Prime Meridian Corporation and associated enterprises. James L. Rhoden, C. S. Vinson and Robert D. Fewox owned all of the stock in the corporation. On February 7, 1968, prior to the corporation's financial catastrophe, Rhoden, Fewox and wife (hereafter referred to as 'Fewox'), and Vinson and wife, individually signed a letter to Tallahassee Bank and Trust Company stating:

'In consideration of the Tallahassee Bank and Trust Co. making loans from time to time to the Prime Meridian Copr., all of which inure to the personal benefit of the undersigned, we the undersigned do jointly and severally guarantee repayment of all such loans now outstanding or hereafter created.'

Subsequently, two promissory notes (dated June 2, 1968, and June 17, 1968) were executed by Rhoden as President of Prime Meridian in favor of Tallahassee Bank and Trust Company. On the 15th day of July 1968, Fewox entered into an extensive agreement with Prime Meridian, Rhoden, and Vinson, in which he sold all of his stock to the corporation and withdrew from active management in same. Fewox notified the bank that he had severed his interest in Prime Meridian. Thereafter, without the knowledge or consent of Fewox and at a time when the financial condition of Prime Meridian was deteriorating, the bank granted the following extensions on both notes: one 60-day extension; three 30-day extensions; and finally, another 60-day extension, thus making both notes due on April 15, 1969, the date this cause was filed. All interest was paid in advance through April 15, 1969, and such interest was accepted by the bank in forbearance of its right to bring immediate suit. On January 1, 1969, the interest rate was increased from seven to eight percent, which increased rate was charged for the last two extensions.

In a lengthy and detailed summary final judgment, the trial judge held each individual defendant liable to the bank in the principal sum of $60,000 plus interest and attorney's fees.

The trial judge in reaching his conclusions held, inter alia:

'4. The Uniform Commercial Code, F.S. Chapter 673, (F.S.A.) is applicable. Under F.S. 673.3--119(1) (F.S.A.) recognition is given to written agreements executed as a part of the same transaction as involves an instrument constituting commercial paper. It provides that the terms of commercial paper may be 'affected by any other written agreement executed as part of the same transaction.' The signed letter above mentioned, by its terms, constituted those signing it as guarantors of repayment of loans by the plaintiff to Prime Meridian including those made subsequent to the letter. The words used in the letter, namely, 'guarantee repayment' are the equivalent of 'payment guaranteed' and thus, pursuant to F.S. 673.3--416(1) (F.S.A.), 'engages that if the note is not paid when due he will pay it according to its tenor without resort by the holder to any other party.'

'5. Therefore, the individual defendants will be regarded as occupying the same status as if they had affixed their signature to the notes themselves in the capacity of a guarantor as defined in F.S. 673.3--416(1) (F.S.A.)

'9. As previously observed the notes specifically provide that the 'makers, Signers, and endorsers--further consent to any--extensions without further notice.' (Emphasis supplied.) The individual defendants are regarded as having the status equivalent to that of guarantors of the instruments involved and thus are within the category of 'signers' as that term is used in the notes. It is shown that the form of the note was selected by the payee, and it is settled law that an agreement of guaranty is construed against the party who prepared or presented same. Miami National Bank v. Fink, Fla.App.1965, 174 So.2d 38. However, if there is no ambiguity there is no occasion to resort to this rule of construction. The 'signers' have consented to 'any extensions', which can only mean to embrace one, two, or any number of such extensions, and thus to constitute an 'otherwise specified' circumstance which renders inapplicable the limitation of consent to extension to a single extension set forth in F.S. 673.3--118(b)(6) (F.S.A.). This also constitutes an express 'reservation of rights' so as to take F.S. 673.3--606(1) (F.S.A.) out of operation to the instruments involved in this case.'

The summary judgment entered by the trial court in favor of the appellee should be affirmed, though perhaps not for the reason assigned in the lower court judgment. The disposition of this cause below rests on the interpretation given to the various provisions of the Uniform Commercial Code as applied to the facts reflected by the record on appeal. The rule is well settled in this jurisdiction that a judgment of the lower court will be affirmed if it is correct, even though for a reason other than that assigned by the court below.

The issues raised by the pleadings in this cause may be disposed of by applying the principles of law of guaranty as distinguished from the law of negotiable instruments embodied in Chapter 673, The Uniform Commercial Code. The latter controls the rights and obligations between the maker, Prime Meridian Corporation, and the holder, appellee bank. On the other hand, the law of guaranty controls the rights and obligations as between the guarantors, appellants herein, and the guarantee bank. While the trial court invoked Section 673.119(1), Florida Statutes, F.S.A., as the basis by which appellants' letter of guaranty made them liable on the corporate notes by holding that said letter was a written instrument executed as part of the same transaction giving rise to the notes, the invocation of said statute was unnecessary in order to hold appellants liable for the loan evidenced by the notes. Indeed, it is doubtful that the letter of guaranty is such an 'other written agreement' within the meaning of the statute, since both instruments were not between the same obligor and obligee as was the case in Hamilton v. Bero Beach Reserve Mortgage Co., 107 Fla. 65, 144 So. 362 (1932), the rule in which is said to be codified by Section 673.3--119(1), Florida Statutes, F.S.A.

Appellants' liability for the loans...