Quillen v. Twin City Bank

• Decision Date: 09 October 1972
• Docket Number: No. 5--6020,5--6020
• Citation: 485 S.W.2d 181,253 Ark. 169
• Parties: Thelma QUILLEN, Individually and as Administratrix, Appellant, v. TWIN CITY BANK, Appellee.
• Court: Arkansas Supreme Court

Page 181

485 S.W.2d 181

253 Ark. 169

Thelma QUILLEN, Individually and as Administratrix, Appellant, v.TWIN CITY BANK, Appellee.

No. 5--6020.

Supreme Court of Arkansas.

Oct. 9, 1972.

J. Harrod Berry, N. Little Rock, for appellant.

Tanner & Wallace, N. Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This suit was brought by the appellee bank to recover the unpaid balance upon two promissory notes.The original defendants were the principal debtor, United Financial Services, Inc., a second corporation, Dealer's Supply, Inc., and four individuals, Hale Allen, C. G. Ball, Doyle Quillen, and Jimmy C. Harris, who were directors or officers of United Financial.The trial court, upon the pleadings, affidavits, and counter-affidavits, entered summary judgment for the plaintiff.This appeal from the summary judgment and from a supplementary decree was taken by Quillen and his wife, who had been joined as a party to the suit.Quillen died pending the appeal, and the cause was revived in the name of the appellant, his widow, as administratrix.

Upon this appeal the controlling question is whether the record sustains the trial court's action in entering a summary judgment.Upon that issue it is familiar law that such a judgment is an extreme remedy, that the burden is upon the moving party to show that there is no genuine issue of fact, and that the evidence submitted upon the motion must be viewed most favorably to the party resisting the motion.Harvey v. Shaver, 247 Ark. 92, 444 S.W.2d 256(1969).When the foregoing principles are applied to the case at barwe are unable to sustain the entry of the summary judgment.

The pivotal question is whether Quillen's countervailing affidavits raised substantial issues of fact.The bank's pleadings and proof showed that on March 25, 1970, the first note to the bank, for $200,000, was executed by the two corporations and the four individuals.The latter evidently signed as guarantors, because on the same day they executed a written agreement guaranteeing the payment of the note.Of course the two instruments, being part of the same transaction, are to be construed together.Gowen v. Sullins, 212 Ark. 824, 208 S.W.2d 450(1948).About five months later the second note sued upon, for $75,000, was executed by United Financial alone.The bank's proof showed the amount due upon each note.

Quillen's counter-affidavits raised a number of defenses.We need not discuss all those defenses upon their merits, for the proof has not yet been fully developed.At this stage of the case it is enough for us to point out that the evidence with respect to at least three of the defenses raised genuine issues of fact.

First, Quillen asserted that the $200,000 note had been materially altered without his consent, in that the bank and United Financial by agreement reduced the monthly payments from.$17,536.80 to $10,000, to Quillen's prejudice.The bank does not deny the alteration of the note, but it insists that Quillen was not in a position to complain, because the contemporaneous guaranty agreement recited that the guarantors 'consent that the time of payment may be extended without notice.'Construing the record most favorably to the appellant, we cannot say as a matter of law that an alteration by which the amount of the monthly payments was greatly...