Hardy v. First Nat. Bank of Vicksburg, 56608
| Decision Date | 22 April 1987 |
| Docket Number | No. 56608,56608 |
| Citation | 505 So.2d 1021 |
| Parties | C.L. HARDY, Jr., and T. Lawrence Hunt v. FIRST NATIONAL BANK OF VICKSBURG. |
| Court | Mississippi Supreme Court |
Kenneth B. Rector, Teller, Chaney & Rector, Oscar P. LaBarre, LaBarre & LaBarre, Vicksburg, for appellants.
James R. Sherard, Vicksburg, for appellee.
Before HAWKINS, P.J., and PRATHER and GRIFFIN, JJ.
Defendants Hardy and Hunt, guarantors on a loan issued by plaintiff, the First National Bank of Vicksburg, appeal a decision by the Warren County Circuit Court holding them presently liable on their Continuing Guaranty Agreements. Because we find the subsequent foreclosure sale of property placed as collateral on the loan in no way diminished guarantors liability following default on the principal agreement, we affirm the trial judge's decision awarding plaintiff judgment in the amount of $12,474.85 to be paid jointly and severally by defendants.
On October 16, 1981, the Orange Group, Inc., and its president, Charles B. Kiser, individually, signed a note to the First National Bank of Vicksburg in the amount of $210,000 due and payable with interest 180 days from that date. The note listed as security for the loan in a separate agreement reached on that same date certain gems (held in trust by the Bank) as well as a deed of trust to land located in the Benard Acres Subdivision.
In connection with this loan, the bank requested and received the personal guaranty of Kiser, Hardy, Hunt, Glover T. Warner, and Philip C. Gee. These four owned the lots described in the deed of trust, which they sold to The Orange Group, Inc., and were indebted to the Bank at the time of the sale. Each signed a document entitled "Continuing Guaranty", as well as an agreement limiting the sum to $60,000 provided certain conditions precedent were met. 1 This latter form was prepared by the bank as well.
Neither The Orange Group nor Kiser paid the note or any part thereof when it became due and the bank foreclosed on its deed of trust and acquired the property for the sum of $150,000.00 which was credited on the Kiser-Orange Group note.
The Bank, on April 11, 1984, filed suit against Kiser, Hardy, Hunt, Gee and Warner on the note and the guarantys. Answers and motions were also filed on behalf of all parties except Kiser, who neither personally appeared nor was represented by counsel in this suit.
The court, sitting without a jury, determined that the foreclosure sale of the property did not reduce the principal owed on the note "by agreement", and found defendant guarantors liable for the remainder of the sum still due on the loan.
In their appeal, Hardy and Hunt assign as error the lower court's decision to enforce their contracts of "continuing guaranty" as well as its refusal to sustain the Rule 12(c) motion for judgment on the pleadings they filed pursuant to M.R.C.P. In support thereof, appellants argue that the terms of the continuing guaranty and limitation agreement forms, taken collectively, establish that they had no liability on the note for any portion of the debt, following its reduction below the stipulated $150,000. See, U.S. for Use and Benefit of Sanford v. Continental Casualty Co., 293 F.Supp. 816 (D.C.Miss.1968) () They claim as well that the term "by agreement" is ambiguous and should be construed against the maker--in this case, the Bank. See, Stampley v. Gilbert, 332 So.2d 61 (Miss.1976) ()
While we would agree that appellants' argument is set on solid legal ground, we do not find it to be supported by the facts of this case.
In accord with the judgment of the lower court, we conclude that, in exchange for the Bank extending credit to The...
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Quitman County v. State, 2003-SA-02658-SCT.
...as a chancellor's fact findings. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989) (citing Hardy v. First Nat'l Bank, 505 So.2d 1021, 1023 (Miss.1987)). ¶ 44. The County's final assignment of error is based on the closing paragraphs of the circuit court's opinion. In it......
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...findings as is a chancellor." Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989) (citing Hardy v. First Nat'l Bank of Vicksburg, 505 So.2d 1021, 1023 (Miss.1987)). "Abuse of discretion is found when the reviewing court has a `definite and firm conviction' that the court ......
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