U.S. Suzuki Motor Corp. v. Johnson, 47973

• Decision Date: 26 June 1984
• Docket Number: No. 47973,47973
• Citation: 673 S.W.2d 105
• Parties: U.S. SUZUKI MOTOR CORPORATION, Appellant, v. Gary L. JOHNSON, et al., Respondents, and Cycle Five, Inc. d/b/a Leadbelt Honda Suzuki, etc., Defendant.
• Court: Missouri Court of Appeals

Page 105

673 S.W.2d 105

U.S. SUZUKI MOTOR CORPORATION, Appellant, v. Gary L. JOHNSON, et al., Respondents, and Cycle Five, Inc. d/b/a Leadbelt Honda Suzuki, etc., Defendant.

No. 47973.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 26, 1984.

V. Kenneth Rohrer, Farmington, for appellant.

Dana Hockensmith, Hillsboro, for respondents.

REINHARD, Judge.

Plaintiff appeals from an order dismissing Counts II through VI of its petition for failure to state a claim for relief. The order was denominated final for purposes of appeal pursuant to Rule 81.06.

In Count I of its petition, plaintiff alleged that on March 3, 1978, it entered into a dealer franchise agreement with defendant Cycle Five, Inc., d/b/a Leadbelt Honda Suzuki. Cycle Five, Inc. was owned equally by Gary Johnson, David Agers, Dennis Flynn, Lloyd Agers and Robert Nappier.

Thereafter, on August 6, 1980, Cycle Five, Inc. entered into a wholesale financing security agreement with ITT Diversified Credit Corporation (hereinafter ITT). Cycle Five, Inc. financed its inventory of motorcycles through this financing security agreement with ITT. Thereafter, Cycle Five, Inc. defaulted under the terms of the security agreement owing ITT $8,490.93. On February 2, 1983, for valuable consideration, ITT assigned its claim against Cycle Five, Inc. for principal, interest, attorney's fees and costs to U.S. Suzuki Motor Corporation. In addition, defendant Cycle Five, Inc. owed U.S. Suzuki Motor Corporation $974.97 on an open account for parts. Plaintiff sought recovery from Cycle Five, Inc. on the parts account and on ITT's claim against Cycle Five, Inc. in the total amount of $9,465.90.

In Counts II through VI, plaintiff alleged that each of the owners, as well as David Agers' wife, on January 30, 1978 executed a continuing guaranty with plaintiff. Each guarantor agreed:

to pay to U.S. Suzuki Motor Corporation ... (hereinafter called Creditor), ... on demand, ... any and all indebtedness of ... Leadbelt Honda-Suzuki (hereinafter called Debtors) to creditor. The word "indebtedness" is used herein in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of Debtors or any one or more of them, heretofore, now, or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether Debtors may be liable individually or jointly with others....

Each of the guarantors' liability was limited to $5,000.00. All of the allegations of Count I were incorporated into Counts II through VI. Plaintiff prayed for judgment against each guarantor in the amount of $5,000.00. The trial court sustained defendants' motions to dismiss Counts II through VI for failure to state a claim upon which relief can be granted. The order was denominated final for purposes of appeal.

A pleading is good against an objection that it fails to state a claim upon which relief can be granted if averments of the pleading accorded every reasonable and favorable intendment, invoke principles of substantive law which may entitle the pleader to relief. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674, 676 (Mo.App.1978). A pleading is not defective even if plaintiff is not entitled to all of the relief sought, so long as he has averred enough to entitle him to some relief. City of Creve Coeur v. Creve Coeur Fire Protection District, 355 S.W.2d 857, 859 (Mo.1962).

In order to state a cause of action ex contractu the plaintiff must allege the making and existence of a valid and enforceable contract between plaintiff and defendant, the right of plaintiff and the obligation of defendant thereunder, a violation thereof by defendant and damages resulting to plaintiff from the breach. Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 691 (Mo.App.1973). See Missouri Military Academy v. McCollum, 344 S.W.2d 636, 637 (Mo.App.1961).

The only issue in this case is whether plaintiff's petition alleges an obligation of defendant to plaintiff under the guaranty agreement. It is well settled that the liability of a guarantor is to be strictly construed according to the terms agreed upon, and a guarantor is bound only by the precise words of his contract, and no stretching or extension of terms can be indulged in order to hold the guarantor liable. Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 172 (Mo.App.1975). Other words cannot be added by construction or implication, but the meaning of the words actually used is to be ascertained in the same manner as the meaning of similar words used in other contracts. They are to be understood in their plain and ordinary sense, when read in the light of the surrounding circumstances and the object intended to be accomplished. Zoglin v. Layland, 328 S.W.2d 718, 721 (Mo.App.1959).

It is apparent that the claim for unpaid parts purchased by Cycle Five, Inc. from plaintiff is covered by the plain meaning of the guaranty and...