First Nat. Bank of Ypsilanti v. Redford Chevrolet Co.

• Decision Date: 07 January 1935
• Docket Number: No. 53.,53.
• Citation: 258 N.W. 221,270 Mich. 116
• Parties: FIRST NAT. BANK OF YPSILANTI et al. v. REDFORD CHEVROLET CO. et al.
• Court: Michigan Supreme Court

270 Mich. 116

258 N.W. 221

FIRST NAT. BANK OF YPSILANTI et al.

v.REDFORD CHEVROLET CO. et al.

No. 53.

Supreme Court of Michigan.

Jan. 7, 1935.

Action by the First National Bank of Ypsilanti and others against the Redford Chevrolet Company and others. From the judgment, plaintiffs appeal.

Cause remanded, with direction.

Appeal from Circuit Court, Wayne County; Homer Ferguson, judge.

Argued before the Entire Bench.

Wiley, Streeter, Smith & Ford, of Detroit, for appellants.

Howard C. Chilson, of Detroit, for appellees.

EDWARD M. SHARPE, Justice.

The Hall Motor Sales was a Michigan corporation with offices in Ypsilanti and with defendant W. P. and W. J. Wink as stockholders. It dealt in Buick cars. In March, 1927, it began to borrow money from plaintiff bank, and in July, 1927, the defendants together with J. E. Hall delivered to the bank an instrument guaranteeing notes signed by the Hall Motor Sales.

November 18, 1931, the company amended its articles of incorporation by changing its name to Redford Chevrolet Company and moved its office to Detroit. On December 30, 1931, the company under its old name gave the bank a 30-day promissory note for $7,400, and on January 30, 1932, the company renewed this note for 30 days and signed the same by using its new name; however, the bank asked for a new guaranty agreement, which was given February 16, 1932, and signed by both defendants. The new agreement was similar to the old one and reads as follows:

‘Whereas, Redford Chevrolet Company, a corporation organized under the laws of the state of Michigan, whose principal office is at Detroit, Mich., hereinafter referred to as said corporation, desires to borrow upon its notes from time to time, though it may be not continuously, of the First National Bank of Ypsilanti, having its principal office in the city of Ypsilanti, Michigan, hereinafter referred to as said bank:

‘Now therefore, for a valuable consideration, the receipt whereof is hereby acknowledged and subject to the limitation that the obligation hereunder shall in no event require the undersigned to pay more than the principal sum of ten thousand and no/100 dollars ($10,000.00) and interest thereon in addition thereto, the undersigned do guarantee to said bank the prompt payment at maturity, or any accelerated or extended date, of any and all notes of said corporation (‘said corporation’ wherever used herein shall include any successor, firm or corporation, whether immediate or otherwise), which evidence loans and (or) discounts, present or future, by said bank and any and all renewals or extensions, in whole or in part, of said notes until the same, both principal and interest, are fully paid and satisfied. Presentment, demand, protest and notice of protest or dishonor and diligence in collecting said notes are each and all waived. Any collateral or other security of said corporation, or any other party, which said bank may hold or which may come to it or to its possession may be released or otherwise dealt with by said bank in all respects and particulars as though this guaranty were not in existence and the obligation of the undersigned hereunder shall be in no wise affected thereby, the undersigned hereby waiving and foregoing any right in respect of any such action of said bank. The possession by said bank of any note of said corporation unless direct written evidence to the contrary be produced, shall be conclusive that it is one of the notes covered hereby, and that full value was given by said bank therefor.

‘The obligation of the undersigned hereunder shall be several and also joint each with all or with any one or more of the others and may be enforced against each separately or against any two or more jointly, or against some separately and some jointly. Said obligation shall be continuing and shall continue (irrespective of any statute of limitations otherwise applicable) and cover and include all loans and (or) discounts made before the revocation hereof shall become effective as herein provided, and as to any loans and (or) discounts so made, shall continue thereafter until the same are fully paid and satisfied. The obligation hereunder shall be in addition to any similar obligation or other liability of the undersigned to said bank. A revocation hereof may be made by the undersigned or any or them as herein provided, but not otherwise. Such revocation shall be by writing signed by the party, or, if deceased, by his personal representative, and delivered to the president, vice-president or cashier of said bank in person at said bank, and shall become effective at the opening of business on the day next succeeding the delivery thereof. The bankruptcy or insolvency of or revocation by any of the undersigned shall not affect the obligation of the others of the undersigned hereunder, but such others shall continue liable for future loans and (or) discounts and for extensions and renewals of prior obligations as though such bankrupt or insolvent or revoking party had not been a party hereto. The obligation hereof shall survive the death of any or all of the undersigned and shall be binding upon the estate of any such deceased party and upon any surviving party for all loans and (or) discounts made thereafter, the same as though such death had not occurred. The obligation of the undersigned hereunder shall be absolute and primary and shall be complete and binding as to each of the undersignedforthwith upon the signing of the same by such one of the undersigned and subject to no condition whatever precedent or otherwise.

‘[Signed] Wm. J. Wink.

‘[Signed] W. P. Wink.

‘The charter of said corporation expires on _____

‘Dated Ypsilanti, Michigan, Feb. 16, 1932.’

When the note fell due on February 29, 1932, $400 was paid on it and it was renewed for $7,000 for 60 days. A copy of the renewal note reads as follows:

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