Ingels v. Citizens State Bank
| Decision Date | 16 February 1982 |
| Docket Number | No. WD,WD |
| Parties | Sam D. INGELS and Harold D. Ingels, Appellants, v. CITIZENS STATE BANK and James Cline, Respondents. 31879. |
| Court | Missouri Court of Appeals |
Joseph A. Sherman and Gwen G. Caranchini, Kansas City, for appellants; Jackson & Sherman, Kansas City, of counsel.
Frank Thackery, St. Joseph and Frank H. Strong, Maryville, for Citizens State Bank; Utz, Litvak, Thackery, Utz & Taylor, St. Joseph, and Strong, Strong & Prokes, Maryville, of counsel.
Harold L. Miller, Maysville, for James Cline; Robison & Miller, Maysville, of counsel.
Before TURNAGE, P. J., PRITCHARD and CLARK, JJ.
Plaintiffs, owners of real estate known as Thunderbird Mobile Home Estates south of Maryville, Missouri, began this suit in six counts against the Citizens State Bank and its president, James Cline, arising out of an alleged suretyship agreement by which Citizens, through Cline, agreed to "be responsible for policing and seeing that the Turnpaco corporation, the contractor on Sam Ingels', et al., mobile home park, pays all the bills and secures all the mechanic's lien certificates to protect your institution as well as the Citizens State Bank. * * *." The claim for damages in each count was for $264,841.41. The first count sought to set up the suretyship agreement as a basis for recovery; the second count was on the basis of "detrimental reliance" on Citizens' promise to be responsible for policing and seeing that Turnpaco's obligations were paid, although it knew that it was precluded from acting as a guarantor or surety on a bond by § 392.150 (actually § 362.105), RSMo 1969; Count II set up that defendants were estopped to claim that a promise was not made to plaintiffs because of their "detrimental reliance"; Count III set up also detrimental reliance on the alleged promise and estoppel of defendants to claim otherwise because plaintiffs did not, in reliance, secure the services of a contractor who could (or would) obtain a contractor's bond or require Turnpaco to secure the customary contractor's bond; Count IV is based upon defendants' alleged false representations that they would stand in the place of a "surety"; Count V was for malicious false representations for which $250,000.00 damages was prayed; and Count VI was grounded upon defendants' negligence in failing to require Turnpaco to live up to the covenants and conditions of its contract with plaintiffs and thus failing to protect their interests. Each of these counts incorporate the allegations of Count I which alleges the existence of a surety agreement running to the Ingels as third party beneficiaries.
It should be mentioned that this case originally arose in 1974 out of a claim by Advance Concrete and Asphalt Co., against Turnpaco, the Ingels and the First Federal Savings and Loan Association of St. Joseph for money due on account and to foreclose a mechanic's lien. The Citizens State Bank was brought in and a cross-claim was filed against it for indemnity by the Ingels on its alleged bond to save them harmless. Sam Ingels, in that case, separately filed a counterclaim against Turnpaco and Citizens (as alleged surety).
On January 20, 1975, Citizens moved to dismiss the Ingels' cross-claim and Sam Ingels' counterclaim upon the ground that a letter addressed to First Federal Savings and Loan Association from Citizens, signed by its president, Cline, fails on its face as a matter of law to constitute a bond or a surety contract or commitment, or if it did "it would not, on its face, as a matter of law, constitute a contract or committ ment enforceable by or on behalf of any person other than Defendant, First Federal, and particularly would not constitute any contract or undertaking for the benefit of Defendant, Third Party Plaintiffs, Ingels." The letter, dated November 8, 1972, to First Federal, a copy of which was attached to and incorporated in the motion to dismiss, is: Suggestions in support of and in opposition to the motion to dismiss, with citation of authorities, were filed by the parties, and the issue was joined as to whether or not the letter was capable of being construed to be a surety contract, and whether, if so, it ran to the Ingels as third party beneficiaries.
On April 14, 1975, the trial court heard the oral arguments of counsel and considered their briefs, and held, citing Stephens v. Great Southern Savings & Loan Association, 421 S.W.2d 332 (Mo.App.1967), that the "Ingels as owners are not entitled to maintain an action on such contract between Citizens State Bank and First Federal Savings and Loan Association, as Third Party beneficiaries, but are only incidental beneficiaries, not entitled to maintain an action upon such Contract." Citizens' motion to dismiss was sustained and a final judgment was entered in its favor. On April 22, 1975, Sam Ingels filed an application to amend his counterclaim in designated respects, which appear to be based upon the same theory as his original one-that he was a third party beneficiary of Citizens surety agreement with First Federal. The trial court never did rule the motion to amend.
Then, on April 29, 1975, the trial court entered its first amended order of dismissal, setting aside the April 14, 1975, order, and again dismissed the cross-claim and counterclaim of the Ingels (for the same reasons mentioned in the original order), and reserved Sam Ingels' counterclaim against Turnpaco. No notice of appeal was ever filed on either of these orders of dismissal.
The trial court here gave judgment to defendants upon multiple theories: (1) That the action was barred because of the prior, April 29, 1975, adjudication of dismissal with prejudice which barred plaintiffs' claims under the theory or theories of res judicata, estoppel by verdict or estoppel by judgment; (2) That claim based upon a principal-surety relationship was barred because plaintiffs in September, 1978, released the...
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