Grandview Bank & Trust Co. v. Midwest Plastering, Inc.
| Decision Date | 27 April 1982 |
| Docket Number | No. WD,WD |
| Court | Missouri Court of Appeals |
| Parties | GRANDVIEW BANK & TRUST COMPANY, Plaintiff-Respondent, v. MIDWEST PLASTERING, INC., Joseph L. Holt, Dixie L. Holt, and Michael J. Holt, Defendants-Appellants. 32003. |
Faltico, Simons & Associates, Kansas City, for defendants-appellants.
Carl E. Laurent, P. C., Scott King, Independence, for plaintiff-respondent.
Before SHANGLER, P. J., and PRITCHARD and DIXON, JJ.
Only the individual defendants appeal. The case was submitted to the jury against the individuals on the plaintiff's claim under a written guaranty executed by the defendants, Joseph, Dixie, and Michael Holt. The jury verdict was in favor of plaintiff in the amount of $25,688.60. Directed verdicts against the corporation on the underlying note and against Joseph Holt on a separate individual note are not issues on this appeal.
The individual defendants assert that the jury instructions improperly required the jury to find against all the defendants jointly and improperly directed the jury to find against the defendants in the specific amount of $25,688.60. This latter issue requires reversal.
Grandview Bank made three loans in the amount of $20,000 to Midwest Plastering, Inc., from 1975 to 1977. The first was made on December 24, 1975. The individual defendants executed a guaranty at that time. That loan was repaid in February, 1977, with funds borrowed from Bannister Bank & Trust Company. Defendant Joseph Holt stated that Bannister Bank had requested that he terminate his business with Grandview Bank. In response to that request, he wrote a letter terminating the guaranties signed by Dixie and Michael Holt and a letter terminating the guaranty which he had signed. A copy of a letter terminating the guaranties of Dixie and Michael Holt, dated January 24, 1977, was introduced into evidence. The record does not reveal why a copy of the letter terminating the guaranty of Joseph Holt was not introduced. Joseph Holt stated that he delivered the two letters to Jerry Zoll, a representative of the Grandview Bank, at the same time that he delivered a list of accounts receivable totaling $316,721 to be used as security for a future loan with the bank. Joseph Holt stated that he delivered the letters on January 24, 1977, but was not sure of the date as the list of accounts receivable was at some point incorporated into a security agreement dated February 1, 1977. The bank at trial claimed to have no record of receiving the letters terminating the guaranties and no such letters in its files. Jerry Zoll was no longer employed by Grandview Bank and did not testify at trial.
Grandview Bank made another loan to the corporation on February 1, 1977, which was secured by the corporation's accounts receivable listed in a security agreement dated February 1, 1977. That loan was repaid February 9, 1977, and the corporation borrowed another $20,000 from plaintiff bank on February 17, 1977, as evidenced by a promissory note of that date. The February 17, 1977, loan was made "per Joseph, Dixie, and Michael Holt had executed three identical agreements with Grandview on December 24, 1975, which in material part read:
security agreement dated February 1, 1977 all account recevible (sic)." The record does not reveal what funds were used to repay the February 1, 1977 loan, but it was not repaid with funds from the February 17, 1977, loan. The February 17, 1977, loan is clearly not a renewal of the February 1, 1977 loan. The February 17, 1977, loan remains unpaid and is the basis for plaintiff's claim against the individual defendants on the guaranty agreements.
....
(I)n order to induce the Bank from time to time, in its discretion, to extend or continue credit to the Borrower, the undersigned hereby guarantees, absolutely and unconditionally, to the Bank the payment of all liabilities of the Borrower to the Bank of whatever nature, whether now existing or hereafter incurred, ....
....
This guaranty is a continuing guaranty and shall remain in full force and effect irrespective of any interruptions in the business relations of the Borrower with the Bank; provided, however, that the undersigned may by notice in writing, delivered personally to or received by registered mail by, an officer of the Bank at the Bank's office at 12500 South 71 Highway, Grandview, Missouri 64030, terminate this guaranty with respect to all Liabilities of the Borrower incurred or contracted by the Borrower or acquired by the Bank after the date on which such notice is so delivered or received.
The trial court directed a verdict for plaintiff against the defendant Midwest Plastering, Inc., for $20,000 in principal, $4,266.60 in accrued interest, and $1,452 in attorney's fees. The court directed a verdict for plaintiff against the defendant Joseph Holt for $5,000 in principal and $1,057.64 in accrued interest on a separate individual note. There is no appeal from those verdicts.
The court submitted Grandview's claim on the guaranty to the jury with the following damage instruction:
If you find the issues in favor of plaintiff then you must award plaintiff $25,688.60. (insert amount)
Defendants claim that the instruction, in setting the amount of damages at $25,688.60, directed the jury to find that plaintiff's "reasonable attorney fees," as provided for in the promissory note, were $1,422.00. 1 The testimony of plaintiff's employee was that defendants owed $20,000.00 principal plus accrued interest of $4,266.60. Defendants assert that the difference between $25,688.60...
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