Zoglin v. Layland
| Decision Date | 02 November 1959 |
| Docket Number | No. 22874,22874 |
| Citation | 328 S.W.2d 718 |
| Parties | Nathan ZOGLIN and Jennie Zoglin, Plaintiffs-Appellants, v. Charles R. LAYLAND, Executor of the Estate of Defendant Allie T. Winkler (Deceased), Respondent. |
| Court | Missouri Court of Appeals |
Barnett & Skeer, David Skeer, Roger T. Hurwitz, Kansas City, for appellants.
Rufus Burrus, Independence, for respondent.
This is a suit on a written guaranty executed by the defendant to the plaintiffs, by virtue of which plaintiffs claim they are entitled to recover $6,000. Trial to the court without a jury resulted in a judgment for plaintiffs in the amount of $29.12. Plaintiffs perfected their appeal. After submission of the case here the defendant, Allie T. Winkler, died, and, upon motion, this court ordered that the cause proceed for determination under the name of Charles R. Layland, Executor of the Estate of Allie T. Winkler, deceased, as the respondent.
This being a jury waived case, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. The judgment should not be set aside unless clearly erroneous and due regard shall be given the opportunity of the trial court to judge the credibility of the witnesses. See Section 510.310 RSMo 1949, V.A.M.S.; Browder v. Milla, Mo.App., 296 S.W.2d 502; Parks v. Thompson, 365 Mo. 700, 285 S.W.2d 687.
The court made findings of fact and conclusions of law. The substance of the findings of fact is: That as of April 1, 1951, the plaintiffs leased to one Terhune and Wooten a certain building known as the Strand Motion Picture Theater, located in Kansas City, for a term of five years; that by the terms of said lease, the lessees covenanted and agreed: (1) to pay as rent the sum of $500 per month during the term of the lease; (2) to keep and maintain the premises, except the exterior thereof, in good repair; (3) to preserve personal property described in the lease in as good condition as it was in at the time of the execution of the lease; and at the termination thereof to deliver to the lessors the premises and personal property in such condition; (4) to pay for all gas, light, heat, power, telephone and other utilities, except water, used in the operation of the theater; (5) to furnish heat in season to certain store rooms and apartments in the building but not covered by the lease; and (6) to pay all personal property taxes which might be assessed during the term of the lease on the personal property located in the building. The lease further provided that continuing default in the payment of rent for 10 days after written notice of such default by lessors to lessees, and in the event of the lessees' default of any other covenant therein contained for 30 days after written notice of such default, the lessors should be entitled to declare 'an event of final default', and should have the right to enter and take possession of the premises and terminate the lease, but for this cause the obligation to pay rent should not cease. The court also found that concurrent with the execution of the lease, the defendant, as guarantor, entered into a written guaranty by which she undertook to guarantee to plaintiffs the payment of the rent reserved in the lease 'during the last or fifth year' thereof, and the 'due performance and observance of the covenants by the lessee therein contained'; that said contract of guaranty was prepared by plaintiffs or their agents; and that the defendant received no compensation as an inducement to execute said guaranty; that on September 17, 1952, plaintiffs by their acts and conduct, terminated the lease between plaintiffs and Terhune and Wooten in that they re-entered and took possession of the demised premises without giving written notice or any notice to said Terhune and Wooten that such re-entry and taking possession was as the agent of said Terhune and Wooten; that prior to the 17th day of September, 1952, the lessees had defaulted in payment of personal property taxes in the amount of $29.12; that on said date, said leased premises and personal property were in as good condition as at the time of the execution of the lease, or in the alternative, any change in the condition of said premises and personal property and any damage thereby occasioned to plaintiffs were incapable of ascertainment from the evidence.
The conclusions of law were to the effect that the guaranty agreement guaranteed to plaintiffs the due performance and observance of the various covenants contained in said lease, but as to rents it included only the payment 'for the last or fifth year of said lease'; and that by re-entering and taking possession of the premises on September 17, 1952, without notice to Terhune and Wooten that plaintiffs were doing so as the agents of Terhune and Wooten, the plaintiffs thereby terminated the lease as of said date and relieved the lessees and the defendant of any obligation under the lease from and after said date.
The material part of the guaranty agreement reads: '(1) First party (defendant) hereby guaranties to Second Parties (Plaintiffs) the payment of the rent reserved by the said lease during the last or fifth year of the term thereof on the days therein appointed and the due performance and observance of the covenants by the lessee therein contained; so that in the event lessee forfeits said lease and becomes obligated to lessor for breach of any covenant contained in said lease prior to the expiration of the term thereof, First Party guaranties to Second Parties the payment of any such obligation, provided, however, that First Party's obligation shall never be greater than a total of $6,000.00'. (Italics supplied.)
Other evidence will be considered in connection with the points raised.
Plaintiffs' first contention is that the court erred in holding that the guaranty, as to payment of rent, was limited to the failure to pay during the 'last or fifth year' of the lease only. This requires construction of a guaranty executed by an accommodation guarantor, and there are well established legal principles circumscribing the scope of such a construction.
It is conceded that the defendant is an accommodation guarantor and as such is a favorite of the law in this state. Citizens Trust Co. v. Tindle, 272 Mo. 681, 698, 199 S.W. 1025. Without quoting from the various cases, it is well settled that the rights of a guarantor are strictissimi juris, and the contract of guaranty must be construed strictly according to its terms, and no stretching or extension of its terms can be indulged in order to hold the guarantor liable on his guaranty. Bank of Slater v. Harrington, 218 Mo. 645, 266 S.W. 496, 497. A guarantor is bound only by the precise words of his contract. 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. But this rule does not entitle a guarantor to demand an unfair and strained interpretation of the words used, in order that he may be released from the obligation which he has assumed. Extrinsic evidence cannot be received to contradict, add to, subtract from, or vary the terms of a guaranty; but when its meaning is doubtful, or obscurely expressed, parol testimony in relation thereto, requisite to a clear understanding of its purport, is admissible. Kansas City, to Use of Kansas City Hydraulic Pressed Brick Co. v. Youmans, 213 Mo. 151, 112 S.W. 225; Citizens Trust Co. v. Tindle, supra. In the instant case, there was no parol testimony offered in explanation of the guaranty.
The plaintiffs argue that in construing the guaranty of rent to be applicable to the fifth year only, the court failed to consider all of the quoted provisions of the guaranty; reached an illogical conclusion; and did not carry out the intention of the parties. They suggest that if the clause, 'If the lessee remains on the leased premises for the entire term of this lease,' is inserted or read into the guaranty at the beginning thereof, then the entire paragraph makes good sense and is consistent with the obvious intention of the parties. Under the authorities supra, neither the trial court nor this court can add words by construction or implication. The meaning of the words actually used must be ascertained and enforced.
The exact language of the guaranty states that the defendant...
To continue reading
Request your trial
-
Dunn Indus. Group v. City of Sugar Creek
...strained interpretation of the words used in order that it may be released from the obligation that it has assumed. Zoglin v. Layland, 328 S.W.2d 718, 721 (Mo.App.1959). A guaranty agreement may be construed together with any contemporaneously executed agreements dealing with the same subje......
-
Whitehorn v. Dickerson, 8612
...of subsequent monthly installments. See Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64, 74--78(1--3); Zoglin v. Layland, Mo.App., 328 S.W.2d 718, 722--723(7). However, she referred to defendant the 'one or two' persons who called her about the leased premises, and her then Te......
-
Painters Dist. Council No 58 v. RDB Universal Servs., LLC
...and no stretching or extension of its terms can be indulged in order to hold the guarantor liable on his guaranty." Zoglin v. Layland, 328 S.W.2d 718, 721 (Mo. Ct. App. 1959) (citing Bank of Slater v. Harrington, S.W. 496, 496 (1924)). Where an ambiguity exists within the contract, parol ev......
-
Rauth v. Dennison
...relation of landlord and tenant . . .'' Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 1132, 23 S.W.2d 64, 74; Zoglin v. Layland, Mo.App., 328 S.W.2d 718, 722-723. Many of the cases emphasize that the landlord's intention to release the tenant from further payment of rent is essential to ......