*1 NORTHWESTERN NATIONAL BANK OF GREAT FALLS, ASSOCIATION, A NATIONAL BANKING PLAINTIFF AND AP- PELLANT, WEAVER-MAXWELL, INC., сorporation, et v. Respondents. al., Defendants No. 85-419. 12, Aug. Submitted 1986. Decided Nov. 1986.
Rehearing Denied Jan.
Graybill, Ostrem, Crotty; Graybill argued, Warner & Turner C. Falls, Great for respondents. defendants and MR. Opinion JUSTICE WEBER of delivered the the Court. Falls, (the Bank) $2,659,671 Norwest Bank of appeals Great N.A. a against County entered it in District Court after Cascade a brought trial. The as and Bank action a foreclosure suit deficiency judgment. prevailed obtain a on their coun- Defendants contract, terclaims for of their breach tortious interference with agreement, fraud, negligent misrepresentation, franchise and bad faith in of The Court also the Weavers’ collateral. granted equitable for defendants relief. reverse and remand a We new trial. dispositive giving in issue is whether the District Court erred special presented a issue breach verdict form which of of adopted in view substan-
of contract terms that defendants’ disputed on court and counsel guidance tial facts. For remand, appeal. briefly on will the other issues raised we consider They are: in it
2. Did err in the manner submitted the District Court jury? with the issue of tortious interference contract judgment upon special entering Did err in the District Court verdict: findings damages for entering judgment jury’s both
a. tort; breach for of contract and punitive con-
b. because verdict’s award of gоod in faith? jury’s finding flicted with the that the Bank had acted 4. Did err in its of the issues reserved the District Court resolution by: for its decision deficiency denying judgment;
a. the Bank’s claim for a proceeds ordering b. to surrender to defendants collateral; liquidation of 18%; and awarding prejudgment
c. at rate of interest a recovery basing attorney d. an fees defendants on their award of on both their contract and torts claims? (IH)
Weaver-Maxwell, truck Inc. was an International Harvester equipment dealership. the other de- and farm Its stockholders are 1977, it a series of Beginning in this entered fendants action. April with 1980 Weaver-Maxwell owed transactiоns the Bank. As of principal slightly accrued interest over plan accounts receiv- guaranteed two SBA loans and on floor in charge able of the Weaver-Maxwell lines credit. banker account was Paul Hoffman. plan plan financing, floor typical
As of floor Weaver-Maxwell’s arrangements provided IH the lenders with and the Bank both inventory in the security financed and had a interest all items agreed specific proceeds item. Weaver-Maxwell had of sale each sale, inventory, proceeds trust to hold the of each as well as the lender, required portion respective to remit and it proceeds receiving them promptly upon without these to the lender for such failed to account demand or notice. When Weaver-Maxwell proceeds, the sale was “out-of-trust.” *4 year,
In Weaver-Maxwell March for the time within second Mr. Weaver payments on two SBA loans. was default for loan approached seeking another Mr. Hoffman at Weaver- a loan to Weaver-Maxwell. Mr. Hoffman refused to make However, personal agree Maxwell. the Bank did to make a loan to $84,291.69. Mr. and Mrs. Weaver in the The loan was amount of by personal secured assets of the Weavers. dispute terms of thе loan were in at trial. Mr. Hoffman testi- precisely proceeds
fied that the amount was calculated and all of its were specific purposes. earmarked He testified that $84,291.69 applied $22,000 was to be as IH follows: was to cover two out-of-trust; $23,060 trucks sold bring delinquent was to current payments SBA-guaranteed loan; $17,492 to the Bank on an was to bring guaranteed current; $21,669.04 the other SBA Bank loan was for the balance due the Bank on a 1979 individual loan to Mr. Weaver; Weaver, hand, $70.65 was for interest. Mr. on the other testified that the loan only necessary to earmarked the extent $22,000 cover sales, in out-of-trust IH and that the rest was to bе used general for Weaver-Maxwell’s business needs. The loan was documented promissory March in a note from the Weavers to the Bank. nothing There was in writing signed by the Weavers any specific mentioned purpose purposes for the loan. The cash immediately was not Weavers, pending filing advanced to the showing documents security the Bank’s interest Weaver assets. April 3, 1980,
On $26,848.45 the Bank advanced March note, $22,000 to cover the IH previously out-of-trust disclosed and $4,848.45 another out-of-trust which had not been disclosed to the Bank previously and was not included in Mr. Hoffman’s calculation. (a day, Friday) next $47,000 requested Mr. Weaver another yet cover another out-of-trust amount owed to IH on a sale made several months earlier. The Bank had not been informed of this out- of-trust sale before this time. Mr. Weaver was to return to the Bank Monday, according testimony, $47,000 to his to receive the out of the sums available from the March 24 note. He testified that when he went pick $47,000 to the Bank up Monday morning, Mr. him, Hoffman told going you “We’re not to advance money,” and that say Mr. Hoffman would not more than that. Mr. testimony Hoffman’s substantially different. He testified $47,000 request, was a new loan and that he told Mr. Weaver a decision whether grant Monday. it would be made Mr. Hoff- man testified Mondаy that on morning talking he concluded after supervisor with his request loan should be declined my because “I had lost confidence in our borrower.” IH immediately terminating notified Mr. Weaver it was dealership Weaver-Maxwell’s because of the out-of-trust situation. *5 prevent quickly assets, To IH repossessing from Weaver-Maxwell’s signed Mr. Weaver a document entitled “Peaceful Possession of Col- Property.” lateral posses- The document allowed the Bank to take sion of protecting the assets. The Bank viewed this as a means of security evening, changed interests. That the locks on the buildings. Weaver-Maxwell It thereafter excluded Mr. Weaver from property hours, except during accompa- business he when was by representatives. 9, nied April bank After the Bank also seized opened and all mail addressed to Weaver-Maxwell. Defendants presented testimony destroyed that the Bank truckloads of Weaver- Maxwell records hauling dump. Approxi- them to the Great Falls mately later, two months the Bank held an auction of Weaver-Max- argued well assets. The defendants that the auction was not well- proceeds run. The applied of the auction were to Weaver-Maxwell’s Bank, they debts to the but did not cover all the debts. The Bank рersonal also security collected assets of the Weavers which it had interests.
The remaining Bank commenced this action to collect sums due on its loans to Weaver-Maxwell and the Weavers. The defendants as- serted counterclaims based on their contention that the Bank had money breached its March 1980 contract to loan to Mr. and Mrs. claims They arising liquidation Weaver. also raised from the Bank’s jury period. their assets. The case was tried to a over a three-week jury $300,000 The awarded to defendants of for breach of contract, $800,000 theories, $40,000 on tort for bad faith in the personal of the Weavers’ assets. It also awarded de- $140,000 punitive damages. fendants The District Court entered judgment on damages. both the breach of contract and tort It de- $377,702.73. deficiency nied the Bank’s claim for a It $729,073.74 ordered the liquida- Bank to remit to defendants $266,597.26 tion of the loan collateral. It also awarded defendants $384,000 fees, prejudgment attorney judg- interest and for a total $2,659,671plus ment of interest.
I Did the form giving jury District Court err in a verdict presented in terms that the issue of breach of contract adopted disputed defendants’ view of substantial facts? $47,000 request should evidence on whether Mr. Weaver’s $84,291.69 part lengthy
have been considered as of the loan lay opinion testimony presented expert conflicting. Both sides $47,000. obligated to advance the The tes- on whether the Bank was timony directly conflicted of Mr. and of Mr. Hoffman also Weaver $47,000 requested on whether Mr. Weaver as disbursement testimony part $84,291.69 loan or as a new loan. This objection. admitted into evidence without entitled to was not asked whether Mr. Weaver was $47,000 Instead, application. Dis- cash out of the note for this adopted proposed special interrogatory trict Court the defendants’ as instruction 1: Number April
“1. A. On request 1980 did Art Weaver Northwestern approximately National Bank to advance on the Weavers’ Weaver-Maxwell, note pay of March in order to a debt of *6 Inc. to International Harvester? no)
“Answer:_(yes your “B. If question ‘yes,’ please answer 1 to No. state the total amount of proximately which the Bank’s breach of contract caused each of the defendants to suffer when the Bank refused to advance such funds? $_ Maxwell,
Answer: Weaver Inc. $_ &Art Grace Weaver $_ & Darlow Ruth Maxwell substance, In required jury this to determine whether Mr. $47,000 Weaver asked the Bank to advance 24 If on the March note. they “yes” answered then the next determination was the amount of damages which the breach caused the defendants.
“While it is within the trial court’s discretion to structure the questions verdict, form and frame special interrogatories of a adequate must be jury to enable the to determine the issues factual judgment.” Kinjerski (Mont. Lamey v. 1981), essential 635 P.2d 566, 567, v. (1959), Glick Knoll St.Rep. citing 38 136 Coburn Cattle Co. v. Small 987; (1907), Mont. P.2d Mont. 88 P.953. We conclude that verdict submitted fact, on this inadequate. agrees record was In the Bank that Mr. $47,000 $84,291.69 Weaver was still entitled to out of the loan. How ever, province it was the if of the to decide Mr. Weaver was apply $47,000 entitled to obligation' IH. on the new out-of-trust record, That jury. central issue was not submitted to the Under this it was judge essential that the leave the factual determination of the Instead, jury. the District Court agreеment nature of the to the obligated to loan reached the conclusion that only $84,291.69 therefore any purpose Mr. Weaver desired and Weaver asked for the whether Mr. left the to determine $47,000. totally disregarded of the evidence. This the conflict facially mortgage suggests note and are
The dissent that the admitted which parol should have been clear and that no evidence out, previously pointed no ob instruments. As would contradict the evidence this jections of the Bank’s were made to the admission prove Further, do not regard. mortgage on their faces the note and obligation part to deliver cash amount an on the of the Bank example, they appropriate as evi As would be to Mr. Weaver. an necessary Clearly, already past it is dence of a debt owed and due. amount, what go instruments to determine outside the terms apply out-of-trust any, if Mr. entitled to on the Weaver was obligation IH. deficient, fatally we special interrogatory
We hold that #1 was court and counsel on guidance new trial. For the remand for a appeal. remand, raised on briefly other issues we will consider the II it submitted the in the manner which Did the District Court err jury? to the issue of tortious interference with contract jury that: instructed the оbjection, Over the the court Bank’s (1) there be a contract are that “The elements of interference with expectation of economic relationship or reasonable valid business part party (2) relationship of the advantage, knowledge (3) causing inducing or a breach interfering, interference intentional *7 (4) relationship expectancy, resultant or or termination of the damage.” unjus- the element of this instruction omits
The Bank contends that tifiability impropriety alleged tortious actions. or of the 286, (Mont. 1982), P.2d Myers Mont. 651
In Bolz v. 200 of interfer- the elements St.Rep. this Court set forth ence with contract: with con- prima interference facie case of “In order to establish a (1) relations, acts that the it must be shown
tractual or business (2) damage to willful, cause calculated to intentional and were were (3) business, the unlawful were done with plaintiff in his or her the cause loss, right justifiable without or purpose causing damage of or (4) actor, part damage on loss re- the and that actual and Sawyer (Fla.App. 1977), Corp. Bermil v. 3rd Cir. So.2d sulted. 579.” given the jury requirement
The instruction the omits the that act part right justifiable is done cause actor.” “without or given ignores position The Bank’s that instruction refusal $47,000 loan, franchise, led of the IH which to the termination justifiеd not tortious because the refusal within rights. Bank’s We conclude that an instruction interference with provide right contract must that is justifiable the act “without or part cause on the of the actor.”
Ill a. Did entering upon special the District err in judgment Court by entering verdict jury’s findings of damages both for breach contract and for tort?
In I, addition to interrogatory mentioned in Issue jury special interrogatories statutory considered on several tort and jury claims. duty good that found the Bank did not breach a faith dealing and fair defendants when it refused to advance $47,000. It found intentionally wrongfully that the Bank in- did terfere with the franchise contract between Weaver-Maxwell IH; fraud, deceit, that the Bank committed fraud constructive causing franchise; Weaver-Maxwell loss of IH the Bank franchise; made negligent misrepresentations causing the loss of the and that liquidated the Bank Weaver assets bad faith. The set damages amount Weaver-Maxwell the tort causes of $800,000. action at theory, Under the contract found that damages $300,000. position Weaver-Maxwell were Bank’s larger should be awarded as the of the alternative However, damage findings. the District Court found that the con- tract damages and tort were cumulative. jury’s
We conclude is un verdict on the tort claims clear special interrogatories because the state acts of do not which the Bank theory. were considered each The instructions under should be revised on should remand to show which acts be theory. considered under each Then it can be determined tort damages are are cumulative to contract and which alternative.
III b. special upon entering judgment err in Did the District Court damages con- punitive award of special verdict’s verdict because in good faith? Bank had acted jury’s finding that the flicted with the duty to act not breach its that the Bank did found $47,000 to the fairly refused to advance when it good faith and deal —torts inter Weavers, other that the Bank omitted but it did find misrepresentation, and bad contract, fraud, negligent with ference damages could Punitive liquidating collateral. the Weavers’ faith if presented, theories of the tort have been awarded under malice, fraud, pre or actual oppression, guilty found Bank was should be 37-1-221(1), jury instructions MCA. sumed. Section theory state under which tort that can revised on retrial so damages. punitive or theories it awards
IV a. reserved of the issues in its resolution Did the District Court err deficiency decision, for a by denying the Bank’s claim for its judgment? unpaid after remaining *9 legal
lecting underlying In the of the- loans. absencе facts or ory record, beyond present appear those in it would that the deficiency Bank is judgment. entitled to a
IV b. Did the District err in Court its resolution of the issues reserved for by ordering its decision to to Bank surrender defendants the proceeds liquidation of of collateral? proceeds
The District Court concluded that these should be equitable grounds. on by surrendered No issue was raised the de presented theory fendants and no evidence was on a Bank required proceeds should be to surrender the of collat eral. jury’s fully We conclude that the verdict was intended to com pensate the for defendants tоrtious actions of the Bank. The record no require demonstrates basis to surrender the proceeds.
IV c. Did the District Court err in its resolutions of the issues reserved by for its awarding decision %? prejudgment at a of 18 interest rate $300,000 The District prejudgment Court awarded interest damages 18%, breach for of contract at rate of the rate a of interest argues Weaver-Maxwell’sloans. prejudgment The Bank that no interest should have been allowed because the amount of contract damages subject prior judgment. was not to calculation 27-1-211, MCA, provides:
Section “Right Every person to interest. damages is who entitled recover capable being by certain or right made certain calculation and upon day recover which is particular vested him is entitled during also to day except recover thereon such interest from that time prevented by by as the debtor is law or the act of the creditor from paying the debt.”
The argue damages defendants that the is rea- amount of contract sonably They certain of calculation. assert amount capital represents working amount of Weaver-Max- awarded counterclaim, dam- well. In their the defendants claimed contract $2,000,000. trial, $3,000,000. ages they The At asked damages. these were not awarded contract We conclude type capable being made which are “certain or calculation,” by prejudgment and that therefore interest certain Bldg. (Mont. 1981), Swenson v. Co. not available. See Buffalo St.Rep. P.2d
IV d. reserved Did the District Court err its resolutions of the issues by basing attorney for its decision an award of fees to defendants on recovery their on both tort claims? their contract and parties’ provided attorney loan contracts for reasonable fees 28-3-704, MCA, actions for their enforcement. Section makes the attorney right reciprocal. District Court awarded de- fees $384,000, attorney fendants fees of or 30% of total amount jury. awarded
Attorney only statute contract fees are awardable when *10 (1982), Sliters v. Lee provides recovery. for their 197 Mont. theories, involving multiple multiple In P.2d 475. a lawsuit claims or attorney spent by an award of fees must be based on the time the prevailing party’s attorney theory on the claim or under which attor Dept. Kadillak v. Montana State Lands ney fees are allowable. of (1982), 198 Mont. P.2d conclude that in We case, attorney only this contract claim. fees are awardable the Reversed and remanded.
MR. CHIEF JUSTICES HARRI- JUSTICE TURNAGE and MR. SON and GULBRANDSON concur. MORRISON, dissenting:
MR. JUSTICE It majority opinion incorrectly seems to me the decides all of the jury in issues this case. jury special interrogatories in with re- this case was submitted
spect by way damage presented to various issues of counter-claim on by part issues were reserved the of defendants. Plaintiffs foreclosure parties through the bench determination. decision Assuming instructing in the arguendo that the District Court erred action, jury special interrogatory on the breach of contract then that However, jury finding the should be aside. such a does not set Compensatory damages punitive infiltrate the tort case. dam- by ages entry the awarded should be affirmed and $980,000. directed totaling on those amounts event, incorrectly In the majority dеcides the breach of con- majority’s tract issue and that should The crux of too be affirmed. position upon assumption relies an the bank officials could cre- by specific ate a testifying breach contract issue the was for loan purposes. purposes parol These were from evidence in the form of pad scratch testimony. notations and This verbal evidence should have been parol excluded as it violated the evidence rule. 28-2-904, MCA, provides
Section as follows: agreements. “Effective written contract on oral The execution of a writing, not, contract in requires whether thе it to law be written or supersedes negotiations all the stipulations concerning oral or preceded matter accompanied the execution instrument.”
The note mortgage appear facially here at issue to be clear. only exceptions, circumstances, parol under these evi- 28-2-905(1), dence rule are in provides: stated Sec. MCA which “When extrinsic concerning agreement may evidence a written be considered.
“(1) agreement Whenever the terms of an have been reduced to writing by parties, containing it is to be considered as all those Therefore, terms. can parties repre- there be between the and their in sentatives or successors interest no evidence of the terms agreement other than in writing except the contents the fol- lowing cases:
“(a) imperfection when a mistake or writing put of the is issue pleadings; “(b) validity agreement dispute.” when the is the fact 28-2-905(1), Neither two forth conditions set in Section MCA, present if this case. there an ambiguity Even were instruments, Bank, same, having raise drafted could not ambiguity parol to allow for introduction of evidence. Section *11 28-3-206, MCA, provides:
“Uncertainty to against party causing be resolved it. In cases of uncertainty by parts chapter, not 1 through removеd 5 this lan- guage interpreted strongly against of a contract should be the most party promissor pre- uncertainty who caused the to exist. The is
46 be- except case of a contract party, sumed be such that to such, private party, is body, a it public or and tween a officer as by party.” uncertainty private presumed that all was caused Furthermore, to note parties respect with the intention of the only the instruments them- mortgage must be ascertained by impossible is to ascertain reference selves unless such intention 28-3-303, opinion majority agreements. MCA. to Section a by simply stating that there was court’s Instruction No. 1 reverses Although no conflict. conflict the evidence. There was fact parol trial plaintiff object evidence the did not to introduction evidence, justified, hearing to rule that perfectly court after all to obligation such create no fact issue the contract evidence could $84,291.69. pay the security not majority agreement to are seems feel note complete parole application. no
a and the evidence rule has contract authority parol applies rule There evidence is abundant (Mont. 1985), Ayers v. In Perez-Lizano negotiable instruments. [215 208, 95,] St.Rep. Mont. 42 similаr issue was before P.2d Ayers appeal Perez-Lizano the court. contended on that his note to by represen- This such agreement. was conditioned oral Court held parol tations rule. Lest there be doubt violated the evidence notes, applies the rule this Court said: 28-2-905, MCA, agree- provides “Section that when the terms an by parties, consid- writing ment have been reduced to it is be terms, of the containing ered as all there can be no evidence except writing agreement terms than of the of the other the contents issue, writing, is at or imperfection when an of the a mistake or dispute. validity agreement when is the fact Ayers’ “Summary proper. assertion that in this case was purpose of question fraudulent there is a material of fact about the true, if are the contract is because even his assertions immaterial parol under the evidence extrinsic evidence would be inadmissible rule.” negotiable which clear
Numerous cases hold that a instrument parol representations. agreements its face cannot be altered 13; Daniell (N.D. 1981), Evenson v. Hlebechuk 2d N.W. See 1986), Motor Co. Inc. Northwest Bank S.W.2d 808. v. (Tex.App. court, proper given by the because Instruction No. trial by de- Upon demand at on their face. instruments issue were сlear they fendants, duty pay had an affirmative
47 refused, obligated were its pay. to When the Bank it breached con- tract to defendants. position jury majority’s respect
The balance of the with to ver- the appears dict a after-thoughts to be cumulation of which would not However, required have damage portion reversal of of the case. the wrong the majority is counts. all
The instruction on intentional interference is a correct one. The supports separate damages record for breach of contract for duplicate tort. damages overlap. There is no indication thаt these or legal requirement There no jury pu- is for the to that be instructed nitive relate to or portion the contract tort of the case. They properly punitive damages were instructed that are awarded oppression, Having for compensatory fraud or malice. found dam- tort, ages in punitive damages. was entitled to award The majority simply adequately to fails address understand the issues in this case.
Next, majority entering addresses whether the erred in court a denying deficiency defendants judgment. the Bank a majority finds fault with the trial court’s determination that liquidation commercially by boldly stating was not reasonable there nothing that, was justify in finding the record a such event, it contradicts finding jury.
Obviously was entitled to choose alternative theories given per- chose fraud instead of other theories them. This is fectly permissible authority and is so well established citation of unnecessary. were, by stipulation,
Foreclosure issues for the court. The reserved specifically court liquidation found commer- method cially properly unreasonable. This fact was decided the court portion its of the case. Weaver-Maxwell, court trial found that was not default on 7, April Only at loans issue after the Bank’s tortious
conduct caused Weaver-Maxwell to lose franchises did upon Consequently, seize these same itself insecure. losses deem action, in the for ac- foreclosure the court found the Bank’s reason celerating commercially to be Abundant evi- loans unreasonable. supported finding. dence in the record this Weaver-Maxwell, part Even if there been had a default on justified not com- finding trial court was burden, mercially part party secured must reasonable. As a of its by means of a full of its collateral establish it realized the value 48 Hubbard v. Farmers Bank disposition.
commercially reasonable
510,
(1980),
720,
Ga.App.
272 S.E.2d
247 Ga.
Point
Union
aff’d
(1980).
431,
this,
party
provе
do
the secured
must
At the time it took of Weaver-Maxwell’s inventory took it did the Bank make Bank no of what received. Nor appraisals equipment inventory. any The most valuable it keep meaningful Bank did even list of what sold. not upon Based the evidence before it the trial court found: inventory sold or “The maintain of what was Bank’s failure to an pre- any appraisals pieces of to make of the more valuable collateral . . of value determining cludes this court from . the amount lost negligence.” as a result of the Bank’s Finding of No. Fact $729,000 liquidation in
At the time of trial the Bank collected had proceeds $726,000. Actually against Bank owes a total debt the $3,000. applicable All law are defendants of the essential facts and in majority’s omitted the discussion. my opinion canceling
In the the indebtedness trial court did err liquidation proceeds defendants. This ordering return of the by equitable goes beyond the remedies available to action the court by duplicate judge may the here and the awarded the well allowing in- jury. disagree I also trial determination with the court’s liquidated. Attorneys’ fees are terest because the was not amount action and this allowable on the cоntract action but not tort respect agree opinion. I majority with the everyone industry complained to banking in Montana has by obligations imposed upon the banks this within ear shot about theory designed obligations Court. At created least we have they assure with the bank- bank customers fair treatment when deal ing industry in this state. practices banking
The facts of this case kind of which illustrate the Court-imposed obligations designed Weavers were to correct. wished $84,291.69. security to borrow wanted The Bank more corporate agreed Weaver-Maxwell The Bank to lend Weavers debt. money personally but demanded that Art Weaver collateralize portion family’s personal loan with a substantial of his assets. arranged Bank did not inform the had Weavers Bank security personal for the on this note to cross-collateralize debt Weaver-Maxwell, security obtaining Inc. After additional debt, corporate the Bank breached its contract to Weavers and $84,291. failed liqui- advance Instead the Bank foreclosed and security. dated the many
There fine banking are bankers institutions the State personally I having Montana. can to that attest done busi- However, practice by ness with engaged them. kind Norwest Bank in this not Great Falls case should be сounte- exactly nanced. It practice the kind business which the new legal stop. duties seek represents attempt by
This case majority a blatant of this Court to bail out where the Bank has serious caused irreparable damage to a Montana and its This kind business owners. of banking practice creates an climate in unfavorable business Mon- tana majority’s and should not be shielded result orientated judicial fiats.
There judgment is no error be trial should entered verdict. The entered the trial court on the equity issues should be to reflect the views herein amended expressed.
MR. JUSTICES SHEEHY HUNT concur. notes due The Bank’s suit was for sums liquidat- collаteral, preparing together with costs of sale of the the Bank’s that District Court concluded ing the collateral. The commercially . . . was not “liquidation assets and collateral any deficiency judg- is not entitled to and that the Bank reasonable to declare a de- not entitled the Bank was ment.” It concluded Bank had because fault in the indebtedness of Weaver-Maxwell destroyed Weaver-Maxwell’s agreement breached its loan toward acts of its tortious It also concluded that because franchise. principal defendants, right to recover had no con- The court outstanding to Weaver-Maxwеll. its loans amounts of deficiency were any claim for a rights of the Bank to cluded that the extinguished. owing remaining argues that neither the amount The Bank asserts paid disputed. It it had not been loans nor the fact that for the to a a matter of law it was entitled as $377,702.73 remaining due. of a justify denial nothing in the record to there is We conclude The court’s conclusion deficiency judgment the Bank. commercially contradicts reasonable liquidation not of collateral was jury’s finding interrogatory #4b that commercially the Bank breached assets was reasonable. Whether underlying agreements loan was never an issue before court. reasonably No cases or statutes have been cited which lead to the prohibited conclusion that the Bank’s tortious conduct it col-