Wishart v. Gates Rubber Co. Sales Division, Inc.

Decision Date21 April 1964
Docket NumberNo. 63-306,63-306
Citation163 So.2d 503
PartiesJ. D. WISHART, Appellant, v. The GATES RUBBER COMPANY SALES DIVISION, INC., a Wyoming corporation, Appellee.
CourtFlorida District Court of Appeals

Bell & Koller, Coral Gables, for appellant.

Feibelman, Friedman, Hyman, Durant & Britton, Miami, for appellee.


HORTON, Judge.

Plaintiff-appellee brought this action against the defendants Gene Mann Tire Service, Inc., Eugene B. Mann, Dorothy H. Mann and the appellant, J. D. Wishart, to recover an alleged balance due on an open account, and a promissory note of the defendant corporation.

The record reveals that pursuant to personal guaranties executed by the individual defendants, 1 Gates Rubber Company (hereafter Gates) sold certain goods and merchandise, principally tires, on account to Gene Mann Tire Service, Inc. (hereafter Tire Service). Toward the end of 1960, Tire Service was experiencing financial difficulties and its account with Gates was approximately $14,000 past due. Mr. Homer Ward, the credit manager of Gates, thereupon contacted the Manns and Wishart who agreed to a modification of their original guaranties in an effort to adjust their past and future liability to Gates. The material provisions of this agreement are as follows:


Date 1/30/61

'NAME Gene Mann

'Firm Name Gene Mann Tire Service

* * *

* * *

'6. Comments: After discussion with Mr. Mann and Mr. Jack Wisher [sic]--agreed to----

1. Set up $14,000 notes, payable $500 for 12 months plus interest. Last payment (13th month to be $8,000.

2. Credit limit at whse--$3500, no shipments to be made over limit or when past due.

/s/ Gene Mann

D. Wishart

Homer Ward'

In the corner of the agreement was the following notation initialled by Ward:

'Note to be signed by both Mann and Wisher [sic].'

On February 6, 1961, pursuant to the foregoing agreement, Tire Service, through the Manns and Wishart as its officers, executed and delivered its promissory note to Gates in the principal sum of $14,000. 2 Upon receipt of the note, Gates credited Tire Service's open account with the principal sum and continued shipping merchandise to Tire Service. Thereafter, Tire Service made a number of payments on the note and upon its open account, but subsequently defaulted, leaving a balance due on the note of $11,500 and a balance of $8,725 on the open account. It was this sum plus interest and costs that Gates sought to recover in the instant litigation.

The appellee's amended complaint alleged the foregoing facts and sought to hold the defendants jointly and severally liable. The appellant's answer admitted the execution of the personal guaranty but averred that subsequent thereto, its terms and conditions were materially changed by the parties, limiting and restricting his personal liability. The appellant's answer further alleged that he was neither primarily nor secondarily liable on the corporate note and not indebted as a guarantor thereon. The appellant's position was that the action was founded upon a corporate promissory note and that the complaint contained no allegation as would attach liability to any of the individual defendants.

The cause proceeded to trial and at the outset thereof, the appellant moved for a severance on the ground that a disproportionate verdict might result. This motion, as well as his motion for directed verdict later made, was denied. At the conclusion of all the evidence, plaintiff-appellee moved for a directed verdict which motion was of all the evidence, plaintiff-appellee moved had failed to prove and establish by any competent evidence any legal or valid defense to their indebtedness. Pursuant to the granting of the motion for directed verdict, the trial court entered its final judgment in favor of the appellee and against Tire Service, the Manns and Wishart in the sum of $20,488.72. After entry of the final judgment the appellant moved for a new trial, which motion was denied. This appeal by Wishart followed.

The principal points urged by appellant for reversal are (1) that the trial court erred in not severing the issues between the appellant and the appellee from the issue between the corporate defendant and appellee; and (2) that the court erred in granting appellee's motion for directed verdict.

As to appellant's first point, we note that ordinarily the question as to whether separate trials should be granted two or more defendants in a civil action lies within the sound discretion of the trial court. See 32 Fla.Jur., Trials, § 18. Further, it has been held that where a guarantor, by instrument in writing, guarantees payment for merchandise to be sold to a corporation, he may be joined with the...

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5 cases
  • U.S. v. Nill
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 5, 1975
    ...is entitled to enforce any one of them, even though he, of course, is entitled to but one performance, Wishart v. Gates Rubber Company Sales Division, Inc., 163 So.2d 503 (Fla.App., 1964). In exchange for his note a third party can obtain a contract from the creditor for the release of the ......
  • Capital National Bank of Tampa v. Hutchinson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 22, 1970
    ...operate as payment before it can have that effect. Seaver v. Stratton, 133 Fla. 183, 183 So. 335, 337 (1937); Wishart v. Gates Rubber Co. Sales Div., Inc., 163 So.2d 503, 506. (Fla.Dist.Ct.App.), cert. denied, 169 So. 2d 386 (Fla.1964); accord, Commercial Credit Corp. v. Sorgel, 5 Cir. 1960......
  • Etheridge Oil Co. v. Panciera, Civ. A. No. 91-0147B.
    • United States
    • U.S. District Court — District of Rhode Island
    • March 12, 1993
    ...its partial discharge argument. See Union Carbide Corp. v. Katz, 489 F.2d 1374 (7th Cir.1973); see also Wishart v. Gates Rubber Co. Sales Division, 163 So.2d 503 (Fla.Dist.Ct.App.1964); American Tobacco Co. v. Chalfen, 260 Minn. 79, 108 N.W.2d 702 (1961); Riccar America Co. v. Daniels, 261 ......
  • Cheek v. McGowan Elec. Supply Co.
    • United States
    • Florida District Court of Appeals
    • August 20, 1985
    ...he is discharged from liability because of any misconduct on the part of McGowan. On the contrary, in Wishart v. Gates Rubber Co. Sales Division, Inc., 163 So.2d 503 (Fla. 3d DCA 1964), the court held that a guarantor is not relieved of his liability merely because credit has been extended ......
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