Cessna Finance Corp. v. Meyer

575 P.2d 1048, 23 U.C.C. Rep. Serv. (West) 837, 1978 Utah LEXIS 1233
CourtUtah Supreme Court
DecidedFebruary 16, 1978
Docket15117
StatusPublished
Cited by24 cases

This text of 575 P.2d 1048 (Cessna Finance Corp. v. Meyer) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cessna Finance Corp. v. Meyer, 575 P.2d 1048, 23 U.C.C. Rep. Serv. (West) 837, 1978 Utah LEXIS 1233 (Utah 1978).

Opinions

ELLETT, Chief Justice:

This case was tried before the court, sitting without a jury, on October 12, 1976. The plaintiff sued defendants on a guaranty agreement that each had signed for an indebtedness incurred by Intermountain Flight Center, Inc. (hereafter referred to as Intermountain). Intermountain defaulted on its debt and filed a petition in bankruptcy. Plaintiff repossessed the collateral and subsequently sold it, applying the proceeds to the amount due and assessing the deficiency against the guarantors.

The trial judge ruled as a matter of law that defendants’ liability was based on an unlimited and continuing guaranty; that the agreement was valid; and that the unfilled blank on the contract was intended to indicate unlimited liability under the continuing guaranty. The case was tried on the sole issue as to whether or not proper notice was given of the sale of the collateral. Evidence was presented by the plaintiff on this issue, but none was offered by the defendants.

A judgment was rendered against the defendants, jointly and severally, for the total sum of $79,010.31 plus interest and costs. Defendant, Paul K. Hurst, now appeals from this judgment on the following grounds:

(1) The guaranty agreement is not enforceable because the provision limiting liability to a specific amount was left blank, and the trial court erred in ruling that the agreement was valid.

(2) Even if the guaranty is an unlimited or continuing guaranty, notice should have been given to the guarantor as to acceptance, amount of liability, and default.

It should be noted that the only evidence presented at trial went to the notice of the sale of the collateral. Notice of acceptance and amount of liability were not brought into issue in the lower court, and the record fails to disclose that appellant attempted to pursue these issues at all. In fact, appellant expressly waived his right to notice in the guaranty agreement. The court’s ruling before trial went to the validity of the guaranty agreement only and it is a well settled rule that issues not raised in the lower court cannot be raised in this Court on appeal.1 Therefore, our examination will be limited to the validity of the guaran[1050]*1050ty agreement and the adequacy of notice of the sale of the collateral.

Guaranty agreements are normally entered into by merchants or by commercially knowledgeable persons dealing at arm’s length. Such agreements are construed by the courts in favor of their validity whenever possible; and the intent of the parties is determined both from the entire document and from the attendant circumstances.2

Appellant cites one Utah case in support of his claim that the amount limiting liability was an essential element to the guaranty agreement and that the failure to include this term causes the contract to fail for lack of mutual assent. That case, Wicks v. Moyle,3 is not entirely on point. It stands merely for the general proposition that contractual mutual assent requires assent by all parties to the same thing in the same sense so that their minds meet as to all the terms.

Whether or not the term limiting liability was essential to the contract requires an examination of the entire agreement and the circumstances under which the agreement was entered into. The document we are concerned with here was signed by all the parties and included the following pertinent provisions:

(1) The guarantors ‘guarantee . the prompt and unconditional payment of each and every installment when due.’ (2) ‘Guarantees the payment on demand of the entire unpaid balance . . . ’ (3) Guarantees payment of ‘any indebtedness for which debtor may be obligated to CFC . . . arising out of the purchase of retail notes and/or instruments. . ."
(4) ‘This guaranty is a continuing guaranty . . . and shall include any indebtedness of debtor ... or any indebtedness for which debtor may be obligated [to Cessna] ... or any other obligation of debtor . .. incurred from the date hereof until notice of withdrawal . . .’
(5)Guarantors agree their liability is both joint and several.

This guaranty was entered into because Intermountain needed financing in order to operate its business and Cessna wanted personal guarantees for payment in the event of Intermountain’s default. Appellant was the vice-president of Intermountain and a member of the Board of Directors. He, together with the other guarantors, volunteered to execute personal, guarantees in their individual capacities to make sure the needed financing would be available. The parties contemplated an open-ended financing arrangement so that Intermountain could obtain direct loans and respondent would purchase both retail and wholesale notes, assignments, and endorsements. This amounted to dealership financing, a contractual relationship that is common in normal business operations.

An agreement is considered to be a continuing guaranty if it contemplates a future course of dealing for an indefinite period of time, or if it intends to cover a series of transactions; and such an agreement remains effective until revoked by the guarantor.4 Such is the situation in this case. The parties intended to have financing cover an indefinite period and, in fact, respondent did advance loans to appellant under this agreement for a few years before the default occurred. That the parties intended this guaranty to be a continuing guaranty to cover Intermountain’s future indebtedness is clear from the express language in the contract to that effect. The agreement was never revoked by appellant.

The unfilled blank, if not essential to the understanding between the parties, may be rejected as unnecessary and mere surplusage if it appears that the omission [1051]*1051was intended.5 In the instant case, the appellant was eager to obtain financing from the respondent and, therefore, volunteered to execute the guaranty agreement. The agreement was a form contract and was given to the guarantors to fill in. The guarantors did fill in all the blanks except the one that limited their liability and duly executed the document. Respondent had no obligation to limit the amount of liability; that was for the guarantors to do if they so desired. If any of them had wanted to limit his obligation, he could have done so by filling in that blank on the form agreement.

The very nature of the agreement itself indicates that the guarantors did not intend to limit their liability because they hoped to continue a line of credit for an indefinite time, the amount of which could not be ascertained. The express language of the guaranty agreement leaves no doubt that the parties intended the liability to be unlimited and intended that any obligation incurred pursuant to the guaranty would be a continuing one. That was the reason the liability limitation clause was left blank; the guarantors never intended to fill it in since it was not necessary to the terms agreed upon between the parties. If a blank deals with a non-essential term, the contract is enforceable.6 The guaranty agreement expresses the full intention of all concerned; there was no mistake or fraud, and the parties did not contemplate a limitation on liability as part of the agreement. The trial court correctly ruled that the guaranty agreement was a valid and continuing contract.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Houweling's Nurseries Oxnard, Inc. v. Robertson
276 F. Supp. 3d 1239 (D. Utah, 2017)
Thomas v. Mattena
2017 UT App 81 (Court of Appeals of Utah, 2017)
In Re Gonzalez
410 B.R. 868 (D. Arizona, 2009)
Nielsen v. Gold's Gym
2003 UT 37 (Utah Supreme Court, 2003)
Homestead Golf Club, Inc. v. Pride Stables
224 F.3d 1195 (Tenth Circuit, 2000)
Naimie v. Cytozyme Laboratories, Inc.
174 F.3d 1104 (Tenth Circuit, 1999)
Hussein Naimie v. Cytozyme Laboratories, Inc.
174 F.3d 1104 (Tenth Circuit, 1999)
State Bank of Graymont v. Rich (In Re Rich)
202 B.R. 107 (C.D. Illinois, 1996)
Triax Pacific, Inc. v. American Ins. Co.
69 F.3d 548 (Tenth Circuit, 1995)
Trolley Square Associates v. Nielson
886 P.2d 61 (Court of Appeals of Utah, 1994)
John Deere Co. v. a & H EQUIPMENT, INC.
876 P.2d 880 (Court of Appeals of Utah, 1994)
Rhode Island v. Howard
First Circuit, 1992
McCaleb v. National Bank of Commerce of Pine Bluff
752 S.W.2d 54 (Court of Appeals of Arkansas, 1988)
Crismon v. Western Co. of North America
742 P.2d 1219 (Court of Appeals of Utah, 1987)
Boise Cascade Corp. v. Stonewood Development Corp.
655 P.2d 668 (Utah Supreme Court, 1982)
Maresh Sheet Metal Works v. N. R. G., Ltd.
304 N.W.2d 436 (Supreme Court of Iowa, 1981)
National Acceptance Co. of America v. Wechsler
489 F. Supp. 642 (N.D. Illinois, 1980)
Berkeley Bank for Cooperatives v. Meibos
607 P.2d 798 (Utah Supreme Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
575 P.2d 1048, 23 U.C.C. Rep. Serv. (West) 837, 1978 Utah LEXIS 1233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cessna-finance-corp-v-meyer-utah-1978.