Northwestern Bank v. Cortner

• Decision Date: 30 March 1973
• Docket Number: No. 72--73,72--73
• Citation: 275 So.2d 317
• Parties: The NORTHWESTERN BANK, Appellant, v. George V. CORTNER, Appellee.
• Court: Florida District Court of Appeals

Page 317

275 So.2d 317

The NORTHWESTERN BANK, Appellant, v. George V. CORTNER, Appellee.

No. 72--73.

District Court of Appeal of Florida, Second District.

March 30, 1973.

John T. Allen, Jr., Harrison, Greene, Mann, Davenport, Rowe & Stanton, and G. Robert Bolton, St. Petersburg, for appellant.

Sam Bucklew, of Bucklew & Ramsey, and William H. Frecker, of Frecker & Garcia, Tampa, for appellee.

HOBSON, Judge.

Appellant, The Northwestern Bank, appeals a judgment entered in favor of appellee, George V. Cortner, in a non-jury trial.

Appellant filed its complaint against appellee alleging that on July 28, 1965, appellee executed a Loan Guaranty Agreement guaranteeing a line of credit to Travelers Directory Services, Inc., Travelers Press, Inc., and Travelers Publishing Company, to the extent of $60,500. Said agreement provides, Inter alia:

For and in consideration of the sum of One Dollar and other good and valuable considerations, in hand paid, the receipt whereof is hereby acknowledged, the undersigned hereby guarantees to The Northwestern Bank, its successor, successors, or assigns, payment at maturity of the bills, notes, checks, drafts, or other evidences of debt, not exceeding the sum of $60,500.00, either made or endorsed by Traveler's Directory Service, Inc., Traveler's Press, Inc., and Traveler's Publishing Company, already discounted or which may hereafter be discounted by said Bank together with all legal or other expenses of or for collection; demand of payment and notice of protest waived.

And I hereby declare this guaranty to be a continuing guaranty of the payment of such bills, notes, checks, drafts, or other evidences of debt, up to said sum of $60,500.00 either made or endorsed by Traveler's Directory Service, Inc., Traveler's Press, Inc., and Traveler's Publishing Company, until revoked by me in writing and a copy of such revocation delivered to said Bank. Such revocation does not constitute a waiver, cancellation, or affect in any way my guarantee, wherein debts were contracted with above corporations under the terms of this agreement prior to receipt of this notice.

The appellee also consented to the personal jurisdiction of the Courts of the State of North Carolina, and service of process by registered mail.

On September 1, 1965, appellant loaned Travelers Directory Service, Inc. the sum of $60,500, and Travelers then and there executed its promissory note for that amount. At the time the complaint was filed the sum of $31,985.74 plus interest was due on said note.

Answer and defenses were filed by appellee, admitting the execution of the Loan Guaranty Agreement, and alleging, among other things, that said guaranty was entered into between appellant and appellee subject to the terms and conditions of a certain Loan Agreement between appellant and Travelers executed August 2, 1965. Appellee further alleged that appellant, without the knowledge and consent of appellee, wholly failed to enforce the provisions of the Loan Agreement, and further allowed collateral required by the terms of the Loan Agreement to completely disappear.

Upon trial, the trial judge entered a judgment in favor of appellee without stating findings of fact or conclusions of law as to the reasons for his judgment.

Appellant contends that the Loan Guaranty Agreement is absoulte and not conditional, and should not be construed with the Loan Agreement. Appellant also contends that the lower court erred in permitting appellee to testify as to the terms and conditions of the Loan Agreement and the Loan Guaranty Agreement.

Parol evidence is admissible to connect several written instruments and show that they were all parts of one transaction; Jackson v. Parker, 1943, 153 Fla. 622, 15 So.2d 451; Asphalt Paving, Inc. v. Ulery, Fla.App.1963, 149 So.2d 370; Halliburton Co. v. McPheron, 1962, 70 N.M. 403, 374 P.2d 286; 30 Am.Jur.2d, Evidence, § 1032; 13 Fla.Jur., Evidence, § 399.

Parol evidence is also admissible to show a condition procedent; Jackson v. Parker, Supra; Bassato v. Denicola, Fla.1955, 80 So.2d 353; Chappell v. Hasche, Fla.App.1957, 98 So.2d 808; Burns v. Board of Public Instruction of Okaloosa Co., Fla.App.1968, 212 So.2d 654; Beach Keys, Inc. v. Girvin, Fla.1968, 213 So.2d 314; 32 A C.J.S. Evidence § 935; 30 Am.Jur.2d, Evidence, § 1038; Corbin on Contracts, Volume 3, § 589; 7 Fla.Jur., Contracts, § 104.

Although the guaranty agreement was signed several days before the loan agreement, appellee testified that the final draft of the loan agreement was not prepared at that time. He stated that he signed the guaranty agreement with the understanding that the terms and conditions of the loan agreement would govern the guaranty agreement, and that Travelers were not to have any money until the loan agreement had been signed.

Not only appellee, but the president of the bank at the time of the negotiations, and others, testified that it was the intention of the parties that the terms of the guaranteeing agreement were to be subject to the terms of the written loan agreement.

The loan agreement specifically provided:

WHEREAS, subject to the terms and conditions of this Agreement, George V. Cortner is willing to indemnify The Northwestern Bank in the maximum amount of Sixty Thousand Five Hundred and No/100 Dollars ($60,500.00) upon loans to Travelers;

4. It is further understood and agreed that at no time will the line of credit exceed fifty per cent (50%) of the current accounts receivable. Any account six (6) months old or older shall not be considered current. Traveler's will execute with the Bank a Notice of Accounts Receivable Financing to be placed on record at the Forsyth County Courthouse, and will stamp each accounts-receivable ledger card with the notation that each account has been pledged to The Northwestern Bank. Traveler's will provide each thirty (30) days a list of accounts receivable with copies of supporting invoices required to reconcile the receivables reported. This provision will become totally effective four (4) months, one hundred twenty (120) days after the execution of this Agreement to allow Traveler's to close out its receivable financing arrangement with the present factoring firm.

9. Traveler's shall deliver to the Bank monthly financial statements, which shall include reports regarding the aging of accounts receivable and quarterly shall furnish to the Bank financial statements, which may be unaudited, prepared by Bruce Hall and...