Brown County Cooperative Ass'n v. Rasmussen-King Cattle Co.

300 N.W.2d 265, 1980 S.D. LEXIS 472
CourtSouth Dakota Supreme Court
DecidedDecember 30, 1980
Docket12916
StatusPublished
Cited by7 cases

This text of 300 N.W.2d 265 (Brown County Cooperative Ass'n v. Rasmussen-King Cattle Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown County Cooperative Ass'n v. Rasmussen-King Cattle Co., 300 N.W.2d 265, 1980 S.D. LEXIS 472 (S.D. 1980).

Opinions

HENDERSON, Justice.

ACTION

This is an appeal from an order of summary judgment in favor of appellee (Brown County Cooperative Association) and against appellant (King) for the non-payment of a promissory note. A default judgment was entered by the court below against the Rasmussen-King Cattle Company, Inc. (corporation). No judgment was entered against Rasmussen as an individual nor has appellee motioned for one. We affirm.

PACTS

Appellant and Rasmussen are the sole partners of the corporation herein involved. The corporation executed a promissory note to appellee for $5,933.34 on April 27, 1976. On the same day, appellee assigned the note to the Aberdeen National Bank (bank). On the back of the note were the signatures of Rasmussen, appellant, and appellee, in that order. The bank held the note and attempted collection for over two years. During this period, at the request of appellant, several extensions were given by the bank for making payment on the note. Signatures of both appellant and Rasmussen appear on the face of each extension agreement. After its execution, the note was altered by the addition of: two telephone numbers in the upper left-hand corner of the note; someone’s initials near the middle of the note; the words “Rasmussen-King Cattle” near the bottom of the note; and a longhand notation near the middle of the note which reads: “$2,000 to be paid when machinery is sold. Talked to Bob Gruman on this.” Appellant argues that the note was further altered without his consent on January 22, 1979, when the interest rate was increased from 10.3% to 12.0%.

The bank eventually sold the note back to appellee. Through mistake or inadvertence on the part of the bank, however, the note was sent to appellant instead of appellee. After various attempts to collect on the note, appellee filed suit with the circuit court on December 27, 1978. Appellee prayed for judgment against appellant, corporation, and Rasmussen for $5,636.26, the amount due on the note as of October 12, 1978. A motion for summary judgment was made by appellee on August 20, 1979. The matter was submitted to the circuit court on affidavits. A hearing was held on September 10, 1979, pursuant to appellee’s motion for summary judgment. On September 11,1979, the circuit court ruled that there was no genuine issue as to any material fact relating to appellee’s claim against appellant, and that appellee was entitled to summary judgment as a matter of law. Appellant asserts on appeal that there were several genuine issues of material fact presented to the court below, therefore the circuit court’s order of summary judgment was in error.

ISSUE

Under the facts presented, did the circuit court err by ordering summary judgment in favor of appellee? We hold that it did not.

DECISION

A motion for summary judgment will be granted only if there is no genuine issue as to any material fact. Poppenga v. Cramer, 250 N.W.2d 278 (S.D.1977). Also, the evidence must be viewed most favorable to the non-moving party. Janklow v. Keller, 90 S.D. 322, 241 N.W.2d 364 (1976). We must determine whether appellee has met its burden of demonstrating that no materi[268]*268al issue of fact existed concerning appellant’s liability on the promissory note.

Appellant maintains that there are three genuine issues of material fact which render summary judgment inappropriate under these circumstances. First, appellant contends that he signed the note as an accommodation party at the behest of the bank; consequently, his endorsement did not make him liable to appellee. Appellant signed the face of the note in his capacity as vice-president of the corporation. Accordingly, under SDCL 57A-3-403 and SDCL 57A-1-201(35), the corporation is the maker of the note.

SDCL 57A-3-415(l) provides: “An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” SDCL 57A-3-415(5), however, states: “An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.” It is appellant’s theory that he is not liable to appellee because appellee is the party accommodated. We do not agree. The party accommodated is the one to whom the name of the accommodation party is loaned; in this case, the corporation. SDCL 57A-3-415(1); State Bank of Greeley v. Owens, 502 P.2d 965, 31 Colo.App. 351 (1972); Blake v. Coates, 294 So.2d 433, 292 Ala. 351 (1974). Since the party accommodated was the corporation, and not, as appellant contends, appellee, his argument under SDCL 57A-3-415(5) is devoid of merit. Thus, appellant is liable to appellee under SDCL 57A-3-415(1) as an accommodation party. Although it does not appear appellant is a guarantor on the note since the words “payment guaranteed” did not accompany his endorsement as required by SDCL 57A-3-416(1), the status of a guarantor would not negate his liability as an accommodation party to ap-pellee. Uniform Commercial Code § 3-415, Comment 1. No genuine issue of material fact was presented to the circuit court as to appellant’s liability as an accommodation party.

Appellant contends that the circuit court erred by refusing to consider parol evidence to establish the actual order in which the promissory note was endorsed. The endorsements on the note appeared in the following order: E. E. Rasmussen, appellant, and appellee by Myron Walth, appel-lee’s manager. Appellant alleges that he in fact endorsed the note after appellee and, therefore, parol evidence should have been admitted to establish the actual order of the endorsements. SDCL 57A-3-414(2) states:

Unless they otherwise agree endorsers are liable to one another in the order in which they endorse, which is presumed to be the order in which their signatures appear on the instrument.

SDCL 57A-3-414(l) states:

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Brown County Cooperative Ass'n v. Rasmussen-King Cattle Co.
300 N.W.2d 265 (South Dakota Supreme Court, 1980)

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Bluebook (online)
300 N.W.2d 265, 1980 S.D. LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-county-cooperative-assn-v-rasmussen-king-cattle-co-sd-1980.