H.C. Clark Implement Co., Inc. v. Wiedmer

• Decision Date: 21 April 1986
• Docket Number: No. 15147,15147
• Citation: 389 N.W.2d 816
• Parties: H.C. CLARK IMPLEMENT CO., INC., Plaintiff and Appellee, v. Arnold WIEDMER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 816

389 N.W.2d 816

H.C. CLARK IMPLEMENT CO., INC., Plaintiff and Appellee, v. Arnold WIEDMER, Defendant and Appellant.

No. 15147.

Supreme Court of South Dakota.

Considered on Briefs April 21, 1986.

Decided June 25, 1986.

Harvey A. Oliver, of Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, for plaintiff and appellee.

Wesley D. Schmidt, of Hopewell & Schmidt, Sioux Falls, for defendant and appellant.

WUEST, Justice.

This is an appeal from a judgment in an action for claim and delivery.

On August 23, 1979, appellant Arnold Wiedmer (Wiedmer) purchased a combine and attachments from appellee H.C. Clark Implement Co., Inc. (Clark) under a motor vehicle installment sales contract. The contract was renewed and provided for two payments of $8,186.64, the first due on December 15, 1984, and the second on December 15, 1985. Wiedmer failed to make the first payment; but, instead, sent to Norwest Bank, the assignee of the contract, a document which purported to pay the entire debt by transferring to Norwest Bank 1,364 bushels of wheat.

The sales contract contained an acceleration clause which allowed Clark to declare the entire debt immediately due and payable under certain terms and conditions upon Wiedmer's default. ^* On February 8 1985, Clark commenced an action for claim and delivery of the secured property under the provisions of SDCL ch. 21-15. On February 11, 1985, the circuit court issued an order requiring Wiedmer to show cause why he should not be required to deliver the combine and attachments to Clark. Thereafter, the Dewey County Sheriff filed a certificate of substitute service indicating the pleadings were served upon Wiedmer's son, a person over the age of 14, at Wiedmer's residence. Unbeknownst to Clark, however, the sheriff had actually served Wiedmer's son with the pleadings at a location other than Wiedmer's residence, which is contrary to SDCL 15-6-4(e).

On February 20, 1985, a hearing was held regarding the show cause order. Clark appeared through counsel, but Wiedmer did not appear either personally or through a legal representative. Based upon the evidence introduced at the hearing, the circuit court entered findings and an order requiring Wiedmer to turn over to Clark the combine and attachments. Some time later, Wiedmer made a motion to quash the service of the summons and complaint, which the court granted. Thereafter, Clark had the summons and complaint properly served upon Wiedmer.

On May 15, 1985, a trial was held regarding the claim and delivery action, at which time Wiedmer was represented by legal counsel. At the conclusion of the trial, the court entered findings of fact, conclusions of law, and a judgment, requiring that the collateral be returned to Clark. Following the entry of judgment, the combine and attachments were recovered by Clark and, after notice, the property was sold. Wiedmer appeals from the trial court's judgment.

The issue on appeal is whether the language of the acceleration clause requires that a demand for payment be made upon Wiedmer prior to the institution of suit.

The language of the acceleration clause stating, "[u]pon the occurrence of any event of default ... you may exercise any one or more of the following remedies ...," indicates that the clause is of a type commonly referred to as an "optional" acceleration clause where an entire debt does not automatically become due upon default. Some action is required by which the creditor affirmatively and unequivocally makes known to the debtor his intention to declare the whole debt due. Glassmaker v. Ricard, 23 Wash.App. 35, 593 P.2d 179 (1979); State Sec. Sav. Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702 (1980); Toomey v. Cammack, 345 A.2d 453 (D.C.App.1975).

The creditor cannot in his own mind effectively exercise the option to declare the whole principal due; he must communicate his decision to the debtor, or manifest it by some outward affirmative act sufficient to constitute notice of his election, such as service of notice of attorney's fees ..., the filing of suit for the entire debt ..., written notice of his exercise of the option ..., or by advertising under the power of sale, to collect the entire principal[.]

Chrysler Credit Corp. v. Barnes, 126 Ga.App. 444, 451, 191 S.E.2d 121, 126 (1972) (citing Lee v. O'Quinn, 184 Ga. 44, 45, 190 S.E. 564, 565-66 (1937)). "The institution of a suit for the whole debt is, of course, the most solemn form in which the holder can exercise his option. This is well recognized and it is, hence, generally held that the institution of a suit ... is notice of the most unequivocal character that the holder wishes to avail himself of his option for acceleration." Annot., 5 A.L.R.2d 968, Sec. 5 at 975 (1949).

By instituting the suit for claim and delivery, Clark has unequivocally exercised its option to accelerate the debt. Wiedmer contends, however, that the acceleration clause clearly requires that a demand for payment be made prior to suit. Wiedmer argues: "The contract states that the remedy upon default is to declare all of the obligations due as of the date of demand. If the demand is made and the Seller subsequently brings suit, then no further demand need be made. The demand, therefore must be made before filing suit." Regarding the issue of demand for payment in the context of a promissory note, the court in Frei v. Hamilton, 123 Ariz. 544, 546, 601 P.2d 307, 309 (1979), states: "To validly exercise an option to accelerate, the majority of jurisdictions require the payee (1) to present the note for payment and demand payment and (2) to affirmatively exercise the option." Similarly, it is stated in Annot., 5 A.L.R.2d Bills & Notes Sec. 6 (1948):

Presentment and demand for payment are not necessary in order to charge the maker or acceptor of a negotiable instrument generally; the holder may nevertheless maintain an action thereon. The situation, however, is different where the holder of a negotiable instrument containing an optional acceleration clause wants to exercise his option. He must as a condition precedent to the exercise of his option present the instrument and make a formal demand upon the payor to pay the installment due.

While this authority is distinguishable from the present situation, inasmuch as it deals with negotiable instruments, it is nevertheless of some assistance.

The language of the clause is ambiguous at best, and it should be noted that under South Dakota law any ambiguities are construed against the drafter of the instrument. Hicks v. Brookings Mall, Inc., 353 N.W.2d 54 (S.D.1984); City of Sioux Falls v. Henry Carlson Co., 258 N.W.2d 676 (S.D.1977). Although inartfully drafted, the acceleration clause in this case does require demand for payment prior to suit.

The record shows that Norwest Bank, appellee/assignor, sent Wiedmer a past due notice on December 24, 1984. In response to that notice, Wiedmer issued a note for 1,364 bushels of wheat, redeemable at a value of $16,373.28, three times its actual value, purporting to be payment in full. While the original service of process was quashed by the trial court, Wiedmer stated he did, in fact,...