Boatmen's First National Bank of Kansas City, a Federally Chartered Bank v. P.P.C., Inc., a Delaware Corporation

927 F.2d 394, 1991 U.S. App. LEXIS 3383
CourtCourt of Appeals for the First Circuit
DecidedMarch 4, 1991
Docket90-1994
StatusPublished
Cited by3 cases

This text of 927 F.2d 394 (Boatmen's First National Bank of Kansas City, a Federally Chartered Bank v. P.P.C., Inc., a Delaware Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boatmen's First National Bank of Kansas City, a Federally Chartered Bank v. P.P.C., Inc., a Delaware Corporation, 927 F.2d 394, 1991 U.S. App. LEXIS 3383 (1st Cir. 1991).

Opinion

LOKEN, Circuit Judge.

Defendant P.P.C., Inc. (“PPC”), appeals from a district court order granting summary judgment to plaintiff Boatmen’s First National Bank of Kansas City (“Boatmen’s”) in its suit to recover on a written Guarantee. Having concluded that the guarantee contains a material ambiguity that is susceptible of at least two reasonable interpretations, we reverse.

The Guarantee was signed by PPC on September 1, 1987, in consideration of Boatmen’s making future advances to Evans Electric Construction, Inc. (“Evans”). The printed portion of the Guarantee document contains typical operative provisions committing PPC to a continuing, absolute, unconditional, unlimited guarantee of all Evans indebtedness to Boatmen’s. This was no doubt a standard Boatmen’s form, as it contains, verbatim, the same key terms and conditions found to be “clear and unambiguous” in Boatmen’s Bank v. Community Interiors, Inc., 721 S.W.2d 72 (Mo.Ct.App.1986). However, as often happens when form contracts are casually modified to reflect a specific transaction, the Guarantee also contains the following typewritten insertion in the bottom left-hand corner of the form, next to PPC’s signature:

THIS GUARANTEE LIMITED TO 20% OF THE OUT STANDING BORROWING
OF EVANS ELECTRIC CONSTRUCTION, INC.
SECURED BY ACCOUNTS RECEIVABLE
AND INVENTORY AND ONLY THOSE LOANS
SECURED BY ACCOUNTS RECEIVABLE AND
INVENTORY.

An authorizing Resolution of PPC’s Board of Directors which was attached to the Guarantee contained this same limitation.

On June 24, 1988, Boatmen’s and Evans entered into a Security Agreement granting Boatmen’s a security interest in all Evans’ accounts receivable and inventory to secure advances by Boatmen’s to Evans. On August 15, 1988, Evans executed and delivered to Boatmen’s a demand promissory note in the amount of $1,200,000. It is undisputed that this loan came within both the Security Agreement and PPC’s Guarantee.

Boatmen’s declared the Evans note due on October 2, 1989, declined to renew it, and demanded that PPC pay 20% of the then unpaid principal and interest. When PPC refused, Boatmen’s commenced this diversity action. Promptly upon receiving PPC’s answer, Boatmen’s moved for judgment on the pleadings, which the district court treated as a motion for summary judgment and ultimately granted. Thus, no formal discovery was conducted and the details of the parties’ business relationships remain largely in the shadows.

*396 Before the district court, Boatmen’s argued, and the district court agreed, that PPC is liable for 20% of the amount owed by Evans on the date of default, $1,153,-019.55. 1 Following Boatmen’s declaration of default, however, the balance due on Evans’ note was further reduced, to $771,-406.98 as of the day before Boatmen’s filed its Complaint, and to $578,681.88 as of April 13,1990, prior to the grant of summary judgment. 2 Therefore, PPC contended below, and urges on appeal, that it should be liable only for 20% of the current outstanding balance ($578,000 as of April 1990). This issue turns on the meaning of the Guarantee’s limitation to “20% of the out standing borrowing of Evans.”

In construing the Guarantee limitation, the district court relied primarily on Warnaco, Inc. v. Farkas, 872 F.2d 539 (2d Cir.1989), one of the few reported cases interpreting a percentage limitation on the amount of a guarantee. In Farkas, the corporate purchaser of a business executed a promissory note for $750,000 and its principal owners jointly and severally guaranteed payment of “20% of the amount due under this Note.” Id. at 541. In defending a suit on the guarantee, the guarantors argued that they had only guaranteed the first $150,000 to be paid under the note; since $140,000 had been paid prior to default, they owed $10,000. The court disagreed, concluding that the phrase “20% of the amount due under this Note” “is clearly a guarantee of a percentage of the total amount”; thus, the guarantors were liable for 20% of the original $750,000 amount of the note, regardless of the $140,000 paid before default. Id. at 543.

Farkas is not dispositive of this case, however, because PPC’s Guarantee is limited to “20% of the out standing borrowing.” Farkas expressly noted that, when the parties substituted the phrase “amount due” for the phrase “outstanding balance,” they increased the guarantors’ exposure (because partial payments of the note would not reduce the amount of the guarantee until the balance due was less than 20% of the original loan). Here, Boatmen’s concedes as much—it contends that PPC owes 20% of the amount due at default, not 20% of the original $1,200,000 loan. Thus, this case turns on a question not addressed by the court in Farkas, the temporal meaning of the term “outstanding.”

This Court is mindful that, in construing PPC’s Guarantee, under applicable Missouri law, the guarantor “is a favorite of the law in this state.... [T]he contract of guarantee must be construed strictly according to its terms, and no stretching or extension of its terms can be indulged.... A guarantor is bound only by the precise words of his contract.” Zoglin v. Layland, 328 S.W.2d 718, 721 (Mo.Ct.App.1959). Still, a guarantee agreement is interpreted using the same rules of construction applied to other written instruments, Kansas City v. Youmans, 213 Mo. 151, 112 S.W. 225, 228 (1908), and any ambiguity must arise from the guarantee agreement itself, Boatmen’s Bank v. Community Interiors, 721 S.W.2d at 79.

In addition to relying on Farkas, Boatmen’s argues that a “fair and reasonable interpretation” of the Guarantee is that PPC is liable for 20% of the outstanding loan balance on the date of default. We agree that is a reasonable interpretation, but the threshhold question remains whether the Guarantee contract is ambiguous, so that summary judgment is inappropriate because extrinsic evidence is admissible to show the intent of the contracting parties. That is a question of law which we review de novo. John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 550 (8th Cir. *397 1990); J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo.Ct.App.1973). “Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper.” Aetna Cas. & Sur. Co. v. Giesow,

Related

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927 F.2d 394, 1991 U.S. App. LEXIS 3383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boatmens-first-national-bank-of-kansas-city-a-federally-chartered-bank-v-ca1-1991.