In March of 1986, appellants, L & H Roofing, Inc., trading as L & H Enterprises, Inc. (L & H), applied for
The form used in the credit application process was the standard Allied Credit Application. The credit form was filled out and signed by Donald L. Hataloski and Peter Scott Lord, who were the president and vice president/treasurer, respectively, of L & H. Materials were then shipped and delivered at the request of Lord and/or Hataloski. Separate invoices were generated each time an order was placed.
On or about August 16, 1988, L & H failed to pay the account then due. Allied then made numerous demands for payment, commencing in 1988. When the invoice rendered by Allied in the amount of $17,304.61 remained unpaid, Allied filed suit against L & H. Additionally, citing what it claimed to be a “personal guarantee” by Hataloski and Lord for the debt of L & H, Allied joined Hataloski and Lord personally on the debt suit.
Allied based its claim of personal liability on guaranty language in its credit application which provides:
“In consideration of Allied Roofers Supply Corp., its subsidiaries or affiliates, extending credit I/we jointly and severally do guarantee unconditionally at all times, to Allied Roofers Supply Corp., its subsidiaries or affiliates, the payment of indebtedness, or balance or indebtedness of the within named firm.
“(All partners or officers should sign.)”
Allied claims that Lord and Hataloski signed the credit application in their personal capacity and thus became guarantors of the corporate debt.
Extensive preliminary activity then began. Allied’s complaint and a Motion for Partial Summary Judgment were originally filed in the Circuit Court for Howard County. On February 7, 1990, the court granted Allied’s motion for partial summary judgment. Judgment was later vacated and the motion reopened after L & H filed a motion to
In October of 1990, a hearing was held on Allied’s second motion for summary judgment and the circuit court granted summary judgment in favor of Allied against L & H, Hataloski and Lord, jointly and severally, in the amount of $17,304.61, plus interest at a rate of 18 percent per annum, reasonable attorney’s fеes of $3,430, and costs for a total judgment figure of $27,051.51.
From this ruling L & H, Hataloski and Lord appeal, contending that the circuit court erred:
—in entering summary judgment based on the credit application document submitted by Allied, notwithstanding affidavits and testimony disputing personal liability; and
—in inferring that Hataloski and Lord were personally liable for the corporate debt of L & H based on the wording of the guaranty clause in the сredit application.
Based on ambiguities we find present in the language of the credit application as a whole, we hold that extrinsic evidence should be considered to determine in what capacity Lord and Hataloski signed the contract. We therefore vacate the judgment as to Lord and Hataloski, personally, and remand the case for a full trial as to them. Sincе L & H, as a corporate entity, has not raised any defense to the debt owed to Allied on appeal, we affirm the judgment with respect to the debt owed by L & H.
SUMMARY JUDGMENT
The standard governing summary judgment is well settled in Maryland. Rule 2-501(e) states:
*646 “The courts shall enter judgment in favor of or against the moving party if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute аs to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.”
In Coffey v. Derby Steel Co.,
“in reviewing the granting or denial of a motion for summary judgment, all inferences ... must be resolved against the moving party. If the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment аs a matter of law, then the judgment sought shall be rendered forthwith.”
See Berkey v. Delia,
In considering whether a dispute remains surrounding a material fact, the court “must accord great deference to the ... party against whom the motion for summary judgment has been filed.” Syme v. Marks Rentals, Inc.,
Ambiguity
The outcome of this case turns on whether the credit application is ambiguous. In Insel v. Solomon,
Allied argues that under the objective theory of contracts the court must stick to the four cornеrs of the credit application and agreement to determine what a reasonable person in the position of the parties would have understood the agreement to mean at the time it was executed. Aetna Casualty Ins. Co. v. Insurance Comm'r v.
The first page of the Allied credit application requires the persons filling out the agreement to list their firm’s name, address, whether the business is incorporated, give the corporate attorney’s name and address, and identify corporate officers by their title. Hataloski and Lord did so, indicating in each space provided information pertaining only to the corporation. They did, however, list their residence addresses in the part of the form that called for information to be given by an owner, partner or president. In those same sections, however, where the application called for the listing of the spouse’s name, both Hataloski and Lord filled in “N/A” (not applicable). This tends to show an intent only to bind the corporation because the available evidence points to the fact that at least Lord was married at the time and it would be impossible for Allied to reach joint marital assets without the signature of Lord’s spouse. The second page follows in a similar fashion,
The disputed clause then follows, specifying that “[a]ll partners and officers should sign.” Again, it is unclear from this language whether Hataloski and Lord were supposed to sign in their personal or representative capacity. But if these signatures were not in their representative capacity, the corporate credit application would be incomplete. That certainly makes no sense because the application was for credit to be extended to L & H.
The ultimate ambiguity arises when the clauses just before the provision upon which Allied relies to support its claim of liability are read:
“[1.] I/we authorize you to contact all credit and trade references herein to verify our credit standing with them.
“[2.] Invoices past due thirty days are subject to a one and one half percent Service Charge per month.
“[3.] If it becomes necessary to effect collectiоn, I/we agree to pay all costs of collection including reasonable court costs and attorney fees.”
The next provision is the guaranty clause followed by the signatures of Lord and Hataloski. This was the only place on the credit application where a signature was required and the only place where Lord and Hatalowski did, in fact, sign.
In order to investigate the credit and trаde references of L & H, Allied needed the authorization of the corporation. In order to charge interest to L & H, Allied needed the agreement of L & H. In order to secure attorney’s fees for collection, Allied needed the agreement of L & H. It is unclear whether Allied investigated L & H’s credit rating, but Allied did charge L & H interest and included that interest in its complaint. Allied did add attorney’s fees and that also appeared in the complaint, and was a part of the judgment. So for those рurposes, Allied could be found to have dealt with the signatures of Lord and Hataloski as being in their representative capacity. While the guaranty
In Volume Tire Co. v. O’Conner,
Another factor that may be considered in resolving the understanding of the рarties regarding the disputed clause is testimony given by Lord at the summary judgment hearing, over objection of Allied’s counsel, in which he described a separate personal guaranty he had made to Allied in 1982 for a then outstanding debt of L & H.
Allied further argues that Lord and Hataloski did not properly plead estoppel and waiver defenses in their answer and thus raised no genuine dispute of material fact. We need not address this contention, however, since we have determined that the ambiguity in the contract clause and the conflicting testimony and affidavits of Allied, Lord and Hataloski create an issue of fact over the capacity in which Lord and Hataloski signed the agreement.
Construed Against the Maker or Drafter
Allied asserts that there is language in the guaranty clause that leads to the inference that the parties were personally and unconditionally guaranteeing the indebtedness of L & H. Two such clauses are “I/we jointly and severally” and “within named firm.” A reasonable person could determine from this language that Allied meant to bind corporate officers personally оn the corporate debt. This is, however, a factual question that takes the case out of the realm of summary judgment.
In addition, where an ambiguity exists in a contract, the ambiguity is “resolved against the party who made it or caused it to be made, because that party had the better opportunity to understand and explain his meaning.” King v. Bankerd,
On cross-examination at the summary judgment hearing, Allied’s attorney asked Lord:
“Q Did anyone force you to sign this application?
“A No.
“Q Did you have the opportunity to read the application?
“A The salеsman was in our office and wanted this form filled out, and we did it quickly, I think.”
“Q Did he prevent you from reading it?
“A No."
While there is no evidence in the record indicating that there was any fraud or duress involved in the signing of the agreement, the Allied salesman present did not appear to have explained any of the relevant provisions, including the guaranty clause. Thus, in construing the language of the credit application against its maker, Allied, we cаnnot unequivocally state that no ambiguity exists.
Pertinent Law
Allied argues that the provisions of Title 3 of the Md. Com.Law Code Ann., while not determinative in the case, should guide the court in its analysis of the capacity of Lord’s and Hataloski’s signatures in the agreement. Allied argues that Md.Com.Law Code Ann. § 3-403(2)(a) (1975), is relevant in deciding the obligations of Lord and Hataloski on the note. Section 3-403(2)(a) provides:
“(2) An authorized representаtive who signs his own name to an instrument
“(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity[.]”
Lainier can, however, be distinguished from the case now before us. Lainier and the line of cases associated with it all involve checks, promissory notes, or other negotiable instruments. Lesser v. Todd Cigarette Serv. Co.,
In the instant case, the guaranty clause of the Allied credit application contains an unconditional promise to pay; but it lacks many of the other elements that would render it a negotiable- instrument. Md.Com.Law Code Ann. § 3-104. Even though the underlying purpose of the Code is to “simplify, clarify and modernize the law governing commercial transactions,” Md.Com.Law Code Ann. § l-102(2)(a), where there is no negotiable instrument involved, Title 3 is not controlling.
Neither party has pointed to, nor have we been able to discover, any Maryland cases that apply § 3-403(2)(a) to nonnegotiable instruments. We have, however, found cases from other states that reach similar conclusions. In Puckett v. Codisco, Inc.,
In a recent Massachusetts case, NRF Distributors, Inc. v. U.S. Carpet, Inc.,
In Clendenin Lumber & Supply Co. v. Volpi,
Standard of Review
Finally, Allied argues that this court may be bound by the “clearly erroneous” standard of review set forth in Admiral Builders v. South River Landing,
In reviewing the granting of summary judgment, we find that the guaranty clause of the Allied credit application to be ambiguous. This opens the door to extrinsic evidence and raises a dispute as to a material fact. Therefore, Allied was not entitled to summary judgment as a matter of law.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
Notes
. Lord’s testimony is as follows:
“BY [COUNSEL FOR L & H]:
******
“Q Well, can [ — ] describe that situation.
“A We were late [ — ]
“[COUNSEL FOR ALLIED]: Again, Your Honor, I'm going to object.
"[COUNSEL FOR L & H]: Your Honor, I think this is [ — ]
"COURT: Well, I’m [ — ] let him testify.
“[COUNSEL FOR L & H]: [ — ] relevant.
"A L & H Enterprises was behind on our payments, and Gene Wilson [Allied’s representative] said he was going to have to file liens against our jobs,- and he said to get his boss off of his back, if we, Donnie [Hataloski] and I, could write a letter to him stating that we would be personally responsible for the outstanding balance at that time [ — ]
“[COUNSEL FOR ALLIED]: Your Honor, again, object, This is a hearsay statement to prove the truth of the matter asserted.
"COURT: Well, self-serving anyway. Sustained.
“BY [COUNSEL FOR L & H]:
"Q Did you ever agree to personally guaran [ — ] personally guarantee any payment to Allied?
“A Yes.
“Q And how much was that?
"Q And was that amount paid by you?
"A Yes, it was.
"Q Did you personally guarantee [ — ] agree to guarantee any other payment of L & H?
"A No, sir. No."
. The predicate language in the NRF Distributors credit application states:
"In making this application, the undersigned understand that all accounts are payable according to the terms as shown on each invoice, and if not paid on оr before said date are then delinquent. The undersigned agree to pay [any] and all service charges added each month on past due invoices. All charges are due and payable in full ... unless notified in writing to the contrary. If credit is granted, the undersigned agree to the above terms and the undersigned are responsible for payment of the account. The undersigned do further agree that if the account must be placed in the hands of an attorney for collection, or if collection is made through probate proceedings, the undersigned will pay a reasonable amount in attorney’s fees. It is further understood that when payment is not made in accordance with the terms of each invoice, shipment of future orders will be withheld.”
. The guaranty clause signed by Volpi stated:
“I and/or we certify the truthfulness and veracity of thе statement appearing above and I and/or we guarantee and bind ourselves to the faithful payment of all amounts purchased or now owing, by us or either of us, or any other person, firm, or corporation for our benefit. If credit is extended to a corporation in which we, or either of us, or I am an officer, or in which an interest exists, I and/or we will personally faithfully guarantee the payment of all credit extended to said corporation.” (Emphasis added).
