Wilbur-Ellis Co. v. Wayne and Juntunen Fertilizer Co., Inc., WILBUR-ELLIS

• Citation: 351 N.W.2d 106
• Decision Date: 28 June 1984
• Docket Number: No. 10621,WILBUR-ELLIS,10621
• Parties: COMPANY, Plaintiff and Appellee, v. WAYNE AND JUNTUNEN FERTILIZER COMPANY, INC., Curt Juntunen, and First Bank of Rolla, Defendants, Robert Wayne, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 106

351 N.W.2d 106

WILBUR-ELLIS COMPANY, Plaintiff and Appellee, v. WAYNE AND JUNTUNEN FERTILIZER COMPANY, INC., Curt Juntunen, and First Bank of Rolla, Defendants, Robert Wayne, Defendant and Appellant.

Civ. No. 10621.

Supreme Court of North Dakota.

June 28, 1984.

Eaton, Van de Streek & Ward, Minot, for plaintiff and appellee; argued by Nevin Van de Streek, Minot.

Arne F. Boyum, Rolla, for defendant and appellant; argued by Arne F. Boyum, Rolla.

PEDERSON, Justice.

Wilbur-Ellis sold various agricultural chemicals to Wayne and Juntunen Fertilizer Co. (W-J Fertilizer) on an open account. The balance due on the account on November 30, 1982 was $110,153.31, and on that date Curtis W. Juntunen, as vice president of W-J Fertilizer and individually, executed an installment note which required payments as follows:

                $11,000.00 on 12-1-82
                22,000.00 on 12-13-82
                26,500.00 on 1-15-83
                26,500.00 on 1-29-83
                24,153.31 on 2-15-83;
                

plus 18% interest payable on each installment.

Also, on November 30, 1982, Robert Wayne, the president of W-J Fertilizer and the father-in-law of Curtis W. Juntunen, signed the following statement on the face of the installment note:

"I, Robert Wayne as an individual, personally, take responsibility to financially back this installment note and agree on said amounts and dates.

Signed Robert Wayne

Dated 11/30/82"

W-J Fertilizer paid Wilbur-Ellis $11,000.00 on December 13, 1982 and $11,000.00 on January 8, 1983. Suit was instituted by Wilbur-Ellis against all defendants on February 17, 1983, seeking, inter alia, recovery of $90,139.97, the alleged balance due on the installment note plus interest at 18%. All defendants jointly answered with a general denial, setting forth an affirmative defense: "setoff, duress, estoppel, failure of consideration, laches, and failure to state a claim upon which relief can be granted, as well as any other appropriate affirmative defenses". The answer also included a counterclaim alleging undue influence and "mental suffering". Defendants prayed for judgment, including attorney's fees and costs.

Although some of the significant facts are not a part of the record in the form of affidavit or otherwise, Wilbur-Ellis asserted that W-J Fertilizer is judgment-proof and Curtis W. Juntunen is deceased, and sought a partial summary judgment on the installment note against Robert Wayne as an individual. The motion was supported by the affidavit (which is a part of the record) of Rod Greene, an agent of Wilbur-Ellis. The Greene affidavit asserts that $90,139.97, plus interest, is due and owing on the installment note, that the installment note was voluntarily signed in consideration of Wilbur-Ellis foregoing the institution of forced collection of sums overdue on the open account, and that all terms, including the...