Vinick v. Fourth Nat. Bank of Tulsa
| Decision Date | 19 November 1974 |
| Docket Number | No. 46594,46594 |
| Citation | 531 P.2d 327 |
| Court | Oklahoma Supreme Court |
| Parties | 15 UCC Rep.Serv. 886 Reva VINICK, Appellant, v. FOURTH NATIONAL BANK OF TULSA, Appellee. |
Houston, Davidson, Jacoby, Main & Nelson, by Kenneth M. Smith, Tulsa, for appellant.
Gable, Gotwals, Rubin, Fox, Johnson & Baker by John Kinslow, Tulsa, for appellee.
This is an application for certiorari for the review of a judgment of the Court of Appeals, Div. No. 1, which reversed the trial court's judgment for defendant rendered on motion for summary judgment.
In the trial court, plaintiff (appellant) Reva Vinick, filed an action against the defendant (appellee) The Fourth National Bank of Tulsa, seeking her discharge from liability on a certain promissory note held by the bank, which was the original payee. She also sought the return of the collateral security she had deposited for the payment of the note, i.e., her passbook savings account in Home Federal Savings and Loan Co.
A copy of the promissory note, which was for $8500 payable in six months, was attached to her petition as an exhibit. It was a negotiable instrument signed by plaintiff and her brother, Alfred Fisher, as comakers. It recited the deposit of the savings account as collateral security 'for the payment of this note, or any other indebtedness of the undersigned * * * including any other note given in extension or renewal hereof, or which may hereafter be contracted * * *'; it also included the following language; 'If this note be not paid when due, the Principals, endorsers and Sureties hereof expressly waive * * * notice of extension of time, or renewal hereof * * *' (emphasis added). These provisions did not affect the negotiability of the instrument. 12A O.S. 1971, § 3--112.
Plaintiff alleged in effect that her brother was the principal debtor on the note and that she signed it in the capacity life of the note, and that this was done period, without notice to her, and without an extension or renewal of the creditor's single-premium term insurance policy; and that two months later, during the extended term, her brother died without paying the note. Her petition characterized the extension of the note without a corresponding extension of the insurance policy as 'a prejudicial act' which entitled her to exoneration on the note.
Extensive pre-trial discovery procedures were pursued by both parties, and defendant's motion for summary judgment, later filed, was submitted upon answers to interrogatories, affidavits and depositions.
The judgment of the trial court among other things sustained the motion for summary judgment for defendant upon the plaintiff's petition.
In this Court, plaintiff argues two propositions. The first is to the effect that the trial court erred in failing to accept plaintiff's 'version of the facts as to all points upon which there was a question of fact.' In this connection, there is a letter in the nature of a memorandum opinion in the record in which the trial judge explained the basis of his ruling. In this letter he said '(1) that the condition imposed as to the plaintiff becoming an accommodation maker and pledging her collateral in fact was met to the satisfaction of the plaintiff before she signed the note, (2) that while the plaintiff did not contemplate the extension of the note, she agreed to the continued use of her pledged collateral if the note should be extended beyond the due date, and (3) that the plaintiff made no condition to the principal maker or the defendant that in the event the note should be extended that renewal of the insurance must be made on the principal maker in order for her pledged collateral to remain on the note'.
Plaintiff argues that the three findings all relate to points that were 'highly disputed', citing the answers to interrogatories and her own affidavit in response to the motion for summary judgment, but without specifying the particular portions of the answers and affidavit raising the alleged conflict.
After a careful examination of the answers to interrogatories, appellant's own affidavit and the depositions which were also before the trial court, we find uncontradicted evidence in support of all three findings.
In her affidavit, plaintiff said that after she and her brother had gone to the bank and after a discussion as to the pledging of her savings account as collateral security, she '* * * requested that My brother take out credit life insurance on his life during the six months term of the note' that this request was made in the presence of the bank official 'who heard my request To my brother'; that the bank official then arranged for the insurance 'for a term coincident with the six months term of the loan which was to be from June 29, 1971 until December 27, 1971; that 'there was never any mention on the part of anyone about the possibility or the likelihood that the note would be extended' and that after her requirements as to insurance had been met, 'my brother and I both signed the note' (emphasis added). In pertinent part, her testimony in her deposition is in exact accordance with the statements quoted above from her affidavit. She testified:
'A. * * * because they told me it would be repaid (sic) for in six months, I had nothing to worry about.
'A. My brother.
'* * *
'Q. But you never told Mr. Hebert (the bank official) that you did not want the note extended?
A. No, it was never brought up. It was never even mentioned about an extension.'
There is no evidence or allegation in the record before us that plaintiff was 'hurried' or 'rushed' into signing the note, or that she was deceived by anyone as to the contents or legal effect of the note she admittedly signed as comaker.
It may be conceded that the answers to interrogatories filed on behalf of the appellee bank raised issues of fact as to (1) whether plaintiff's requirement as to credit insurance was made before or after she signed the note and (2) whether the appellee bank was apprised of the fact that the entire proceeds of the note would go to plaintiff's brother. However, as we have seen, the trial court resolved the first issue in her favor by finding that the requirement as to credit insurance was made (and met) before the note was signed. The second issue was pertinent only on the question of whether plaintiff was, as she alleged, an accommodation party only. This issue was also resolved in her favor by the finding that she was an accommodation maker.
In summary, there was no conflict in the evidence on the following points: (1) as a condition for signing the note and pledging her collateral, plaintiff required Her brother to obtain credit insurance for the six months term of the note; (2) after this was done, she voluntarily signed the note as one of the makers, or promisors, without being deceived in any way as to the contents or legal effect thereof; (3) in the note she affirmatively agreed to the continued use of her collateral in case of an extension thereof, and affirmatively agreed to the extension or renewal of the note without notice to her; (4) she did not require that, as a condition for...
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