Ricker v. BW Acceptance Corporation
Citation | 349 F.2d 892 |
Decision Date | 16 August 1965 |
Docket Number | No. 8015.,8015. |
Parties | Charles L. RICKER, Appellant, v. B-W ACCEPTANCE CORPORATION, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Eugene Klecan, Albuquerque, N. M. (Bingham & Klecan, Albuquerque, N. M., on brief), for appellant.
Eric D. Lanphere, Albuquerque, N. M. (Iden & Johnson, Bryan G. Johnson and James T. Paulantis, Albuquerque, N. M., on brief), for appellee.
Before PHILLIPS, LEWIS and HILL, Circuit Judges.
Ricker has appealed from a summary judgment against him, individually, in favor of B-W Acceptance Corporation, on a written contract of guaranty. In opposition to the motion for summary judgment, Ricker filed an affidavit in which he admitted that he signed the written guaranty, but averred that he signed it in his representative capacity as President of Modern Furniture Company, a New Mexico corporation, and did not execute it as an individual guarantor.
The written contract in part here material reads as follows:
Ricker's contention is that he was entitled to establish by parol evidence that he executed the written guaranty as President of Modern Furniture Company and not as an individual guarantor, and therefore no contract came into existence between the Acceptance Corporation and Ricker.
The contract of guaranty was made in New Mexico and expressly recited that it was to be governed by New Mexico law. Hence, in resolving the legal issues here presented, we must apply the law of New Mexico.
In Ellis v. Stone, 21 N.M. 730, 158 P. 480, at page 483, L.R.A.1916F, 1228, the court said:
* *"
Thus, it appears New Mexico has adopted the well-settled general rule of descriptio personae.1
However, the court in the Stone case found the guaranty was so ambiguous it was impossible to determine whether it was intended to bind Stone, individually, or the bank of which he was president, and concluded that the trial court properly considered evidence aliunde the writing.
The name "Modern Furniture Co." appears in the body of the written guaranty, not as a contracting party or guarantor, but only in the capacity of a "dealer and/or distributor," and seller of the securities guaranteed, and at no place in the body of the guaranty is such company referred to other than in the two last-mentioned capacities.
By the first paragraph of the written guaranty, the "undersigned" guarantees to the Acceptance Corporation "the performance and payment at maturity" of any and all contracts,...
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