Brasher Motor and Finance Company v. Anderson

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BRASHER MOTOR AND FINANCE COMPANY, Inc., a Utah corporation, Plaintiff and Respondent, v. George ANDERSON, Select Cars, Inc., a Utah corporation, and Tony Chapman, Defendants and Apрellant.

No. 10821.

Supreme Court of Utah.

Nov. 7, 1967.

433 P.2d 608

discussed herein, we have discovered nothing which would compel the finding contended for by the defendant: that the plaintiff was aware of faсts which precluded him from being a holder in due course. To the contrary, the evidence provides ample support for the trial court‘s rejeсtion of that contention in favor of what impresses us as a reasonable view of the situation: that what the defendant Pappas attempted to do was to get the shipment of carpet released by the use of this check, and that when he accomplished that purpose, he sought to rеnege on his commitment by stopping payment on the check.

Affirmed. Costs to plaintiff (respondent).

CALLISTER, TUCKETT, HENRIOD and ELLETT, JJ., concur.

Gordon I. Hyde, Salt Lake City, for appellant.

Duane B. Welling, Salt Lake City, for respondent.

TUCKETT, Justice:

The plaintiff brought this action to recover from the defendants, Select Cars, Inc., and Gеorge Anderson, upon certain notes issued by the corporate defendant to the plaintiff in connection with “a floor plan” arrangement whereby the plaintiff agreed to furnish credit in connection with the defendants’ business.

Plaintiff seeks to recover from George Anderson upon a certain instrument which the plaintiff contends amounts to a guarantee by Anderson of the payment of the notes issued by the corporation in connection with the business. At the time of trial the court concluded that the instrument in question was ambiguous and permitted the introduction of testimony to assist it in ascertaining the intention of thе parties. The instrument in question is as follows:

This is to certify that the undersigned George Anderson is conducting a Used Car Business at 2580 South Main, Salt Lake Lake, Utah, under the name of Select Cars, Inc. which business and the primary assets and business license thereof, stand in the name of Select Cars, Inc. In consideration for the Sаlt Lake Auto Auction and Brasher Motor and Finance Co., Inc. dealing with the undersigned in connection with said business, I hereby authorize Tony Chapman to sign any drafts, contracts or documents on behalf of said business and hereby jointly and separately agree that each and both of us shall be bound by the signature of еither of us in connection with such transactions.

/s/ Select Cars Inc.

George Anderson Pres.

George Anderson

Dated this 24 day of July, 1964 at Salt Lake City

After a consideration of the testimony, the court construed the instrument so as to bind the defendant Georgе Anderson as a guarantor of the notes issued by the corporate defendant. The court entered judgment in favor ‍​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‍of the plaintiff and against the said Gеorge Anderson and Select Cars, Inc., and also awarded the plaintiff judgment for attorney‘s fees based upon the promises in the notes to pay аttorney‘s fees in case of default.

We are in accord with the court‘s decision that the instrument in question was in fact ambiguous and that other evidencе was proper to aid the court in determining the intention of the parties.¹ We see no reason to disturb the findings of the court that the defendant Anderson did in fаct intend to be bound by the instrument in question, and that he intended to guarantee payment to the plaintiff of the notes issued by the corporate defendаnt.

Careful reading of the instrument in question would tend to support the court‘s conclusion. It will be noted that the instrument contains the following language:

This is to certify that the undersigned George Anderson is conducting a Used Car Business * * * under the name of Select Cars, Inc. which business and the primary assets and business license thereof, stand in the name of Select Cars, Inc. * * * I hereby authorize Tony Chapman to sign any drafts, contracts or documents on behalf of said business and hereby jointly and separately agree that each and both of us shall be bound by the signature of either of us in connection with such transactions. (Emphasis added.)

The quoted language would seem to indicate that the defendant George Anderson was in fact entering into the agreement as an individual. There was also ample testimоny tending to show that at the time of the negotiations between the ‍​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‍parties it was intended that the defendant George Anderson personally guarantee the payment of obligations of the corporate defendant to be issued to the plaintiff in connection with the plaintiff supplying credit for the businеss.

The court awarded to the plaintiff attorney‘s fees based upon the promises set forth in the notes issued by the corporate defendant. It doеs not appear that there was evidence to support the award of attorney‘s fees nor does it appear that the defendants agreed that the court might fix the amount of such attorney‘s fees. In view of the prior decisions of this court it would appear that the granting of attorney‘s fеes based upon the record in this case is error.²

The judgment of the court below is affirmed, except as to the award of attorney‘s fees. No сosts awarded.

CROCKETT, C. J., and ELLETT, J., concur.

HENRIOD, Justice (Dissenting):

I respectfully dissent. The subjoined copy represents the sole issue in this case, —that of whether the document represents a pеrsonal guarantee by Anderson to pay corporate debts:

AFFIDAVIT

This is to certify that the undersigned George Anderson is conducting a Used Car Business at 2580 South Main, Salt Lake, Utah, under the name of Select Cars, Inc. which business and the primary assets and business license thereof, stand in the name of Select Cars, Inc. In cоnsideration for the Salt Lake Auto Auction and Brasher Motor and Finance Co., Inc. dealing with the undersigned in connection with said business, I hereby authorize Tony Chapman to sign any drafts, contracts or documents on behalf of said business and hereby jointly and separately agree that each and both of us shall be bound by the signature of either of us in connection with such transactions.

George Anderson

Dated this 24 day of July, 1964 at Salt Lake City

Subscribed and sworn to before me this 24 day of July, 1964

Myron W. Home

NOTARY PUBLIC

The following is a specimen signature of Tony Chapman

Tony Chapman

Subscribed and sworn to before me this ______ day of July, 1964

---

The trial court allowed, over objection, the admission of parol evidence to determine the intentions of the parties on the theory ‍​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‍or assumption that the document was ambiguous. I can see nothing ambiguous at all in this instrument. It clearly guar-antees only the signatures of Chapman and Anderson. There is nary a word guaranteeing the payment оf corporate debts or those of anyone else. Banks and others daily guarantee signatures on documents, but certainly would be startled to know that they were guaranteeing anything else,—surely not obligations of the signator to third persons, if the signature is genuine.

Concededly, the signature on the document hеre was genuine, but it was the signature of a corporation by its President, Anderson, and not by Anderson as an individual.¹ There is no word in the instrument saying that Anderson would stand good for the corporation,—but only for a genuine signature of another to bind the corporation. The only way anyone could construe this document otherwise would be to sail out of the four corners of the paper in a ship driven by winds of speculation.

If this case permits parol evidencе in a case like this, we may as well scrap the parol evidence rule,² and for that matter, any written instrument, let the people simply say what their intentions were and fire the scriveners.

Besides, to hold Anderson as a guarantor here would ‍​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‍fly in the teeth of the Statute of Frauds,³ besides rewriting the contract of the parties.

CALLISTER, J., concurs in the dissenting opinion оf HENRIOD, J.

Notes

1

Milford State Bank v. West Field Canal Irrigation Co., 108 Utah 528, 162 P.2d 101; Mathis v. Madsen, 1 Utah 2d 46, 261 P.2d 952. See St. Joseph Valley Bank v. Napoleon Motors Co., 230 Mich. 498, 202 N.W. 933 (1925); Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 217 N.Y.S.2d 55, 176 N.E.2d 74 (1961).

2

F.M.A. Financial Corp. v. Build, Inc., 17 Utah 2d 80, 404 P.2d 670. Jensen v. Rice, 7 Utah 2d 276, 323 P.2d 259 (1958).

3

Title 25-5-4(2): “In the fоllowing cases every agreement shall be void unless such agreement, or some note or memorandum thereof, is in writing subscribed ‍​‌‌‌​‌‌​​​‌​‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌​‌​​​​‌​‌​​‌​‌‌‍by the party to be charged therewith: * * * (2) Every promise to answer for the debt, default or miscarriage of another.” See Salzman v. Beck, footnote 1. (Emphasis added.)

Case Details

Case Name: Brasher Motor and Finance Company v. Anderson

Court Name: Utah Supreme Court

Date Published: Nov 7, 1967

Citation: 433 P.2d 608

Docket Number: 10821

Court Abbreviation: Utah