Commercial National Bank in Shreveport v. Pipe Sales of Shreveport, Inc.

600 So. 2d 130, 1992 La. App. LEXIS 1378, 1992 WL 103536
CourtLouisiana Court of Appeal
DecidedMay 13, 1992
DocketNo. 23619-CA
StatusPublished
Cited by5 cases

This text of 600 So. 2d 130 (Commercial National Bank in Shreveport v. Pipe Sales of Shreveport, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commercial National Bank in Shreveport v. Pipe Sales of Shreveport, Inc., 600 So. 2d 130, 1992 La. App. LEXIS 1378, 1992 WL 103536 (La. Ct. App. 1992).

Opinion

BROWN, Judge.

On May 27, 1986, W. Carey Pearson, acting on behalf of Pipe Sales of Shreveport, Inc. (Pipe Sales), executed two promissory notes payable to the order of Commercial National Bank in Shreveport (CNB). One note in the amount of $109,-305.61 was due and payable in one installment on July 21, 1986 and a second note in the amount of $210,649.71 was likewise payable in one installment on August 11, 1986. CNB filed this action on July 28, 1988 to collect these two notes against Pipe Sales. Because of the execution of instruments styled “Continuing Guaranty”, W. Carey Pearson, Kenneth M. Byram, Ann Ryan Palmer and Steven Palmer were named as additional defendants. The trial court granted a motion for summary judgment in favor of CNB against all defendants except Pearson who had filed and obtained Chapter 7 bankruptcy relief. By-ram and the Palmers have appealed. Determining that summary judgment was not appropriate, we reverse.

FACTS

On August 8, 1983 Byram and George C. Palmer signed separate but identical documents labeled “Continuing Guaranty” in favor of CNB for the debts of Pipe Sales which were limited to the principal amount of $250,000 and any additional interest, fees and charges that may be due. Pipe Sales furnished CNB a corporate resolution dated August 17, 1983 authorizing either W. Carey Pearson or George C. Palmer to borrow money from CNB and execute promissory notes on behalf of the corporation. On March 26, 1985, George C. Palmer died with three-fourths of his estate being inherited by his widow, Ann, and one-fourth by his son, Steven. Ann and Steven Palmer were made defendants in this action due to their unconditional acceptance of Palmer’s succession.

CNB’s submissions in support of its request for summary judgment were the two notes, continuing guaranties, corporate resolution authorizing Pearson to borrow for the corporation, the filings and judgment of possession in Palmer’s succession and an affidavit by CNB’s Assistant Vice-President outlining the status of the notes.

In opposition to CNB’s motion, the Palm-ers’ offerings showed that the bank had immediate knowledge of the death of George C. Palmer and that his heirs did not know of the continuing guaranty. In affidavits from Ann and Steven Palmer the initial debt of Pipe Sales was alleged to have been contracted before Mr. Palmer’s death and evidenced by two notes with fixed maturity dates of August 12, 1985 and October 21, 1985. The affidavits state that after Mr. Palmer’s death these maturity dates were extended several times by renewal notes without notice to either Ann or Steven Palmer. The two notes involved in this action represented the final extension of the due date. CNB, however, presented no background information concerning the two notes involved in this action. CNB based its motion entirely on the nonpayment of the two notes executed fourteen months after Mr. Palmer’s death.

[132]*132Byram filed an affidavit in opposition to CNB’s motion asserting error and fraud when he signed the guaranty. He further alleged that Pipe Sales never authorized Pearson to borrow money or execute the two promissory notes.

DISCUSSION

CNB’s motion for summary judgment relies on the language in the continuing guaranties signed by George C. Palmer and Byram. The guaranties provided for in solido liability with the principal, Pipe Sales, and allowed extensions of the obligation without notice or consent of the guarantor. The instrument recited that the guarantor bound “myself, my heirs and assigns.”

The jurisprudence has consistently considered a continuing guaranty contract to be equivalent to a contract of suretyship. First National Bank of Crowley v. Green Garden Processing Company, Inc., 387 So.2d 1070 (La.1980). The traditional civil law concept of suretyship creates a liability accessory to that of the principal debtor. LSA-C.C. Art. 3035 defines suretyship as an accessory contract to fulfill the obligation of another who has failed to perform. See 6 S. Litvinoff, Louisiana Civil Law Treatise, “Obligations”, § 111 at 195 (1969). Because of the nature of the surety’s obligation the Civil Code affords certain rights and defenses. LSA-C.C. Arts. 3035-70. One such defense is that a surety is fully discharged when a creditor extends the term of the debt without the surety’s consent. LSA-C.C. Art. 3063 (repealed as of January 1, 1988).

In the instant case CNB. employed “boilerplate” language binding the guarantors in solido with the principal debtor. CNB argues that this language in the guaranty contract changed the nature of the obligation from suretyship to that of principal co-obligors. First National Bank of Crowley v. Green Garden Processing Company, Inc., supra; Louisiana Bank & Trust Company, Crowley v. Boutte, 309 So.2d 274 (La.1975); LSA-C.C. Art. 3045 (amended Acts 1987, No. 409 § 1 effective January 1, 1988).

Because it is an accessory obligation, suretyship provides benefits and defenses to guarantors not available to solidary obli-gors. The instant case illustrates the precarious position of a guarantor who signs “boilerplate” contracts of suretyship. Although undertaking what he believes to be an accessory obligation, the guarantor in certain respects becomes a primary obligor and loses some of the defenses available to sureties. The problem faced by this court is the extent to which these sureties have waived the benefits of their accessory status by being bound in solido.

Regardless of the confusion created by applying the rules of solidarity to the surety’s obligation, the general rules of contractual interpretation are applicable. LSA-C.C. Art. 2056 requires that any ambiguity in a contract must be interpreted against the drafter. In this case the continuing guaranties were drafted by CNB, and if not clear must be interpreted in defendants’ favor.

EFFECT OF THE DEATH OF GEORGE C. PALMER

A continuing guaranty is terminated as to future transactions by the death of the guarantor of which the creditor has knowledge. Interstate Electric Company v. Tucker, 197 La. 660, 2 So.2d 56 (La.1941); Leeds v. Whitney National Bank of New Orleans, 374 F.2d 500 (5th Cir.1967). See also LSA-C.C. Art. 3061 which became effective January 1, 1988 and provided that knowledge of the death of a surety has the same effect on a creditor as would a notice of termination received from the surety. The comments to Art. 3061 state that it simply codified a principle recognized in the jurisprudence.

CNB’s argument that the language “I hereby bind myself, my heirs, and assigns” was a waiver of this general rule of law has no merit. This language is ambiguous as to the effect on future transactions after the death of the guarantor. The same “boilerplate” language was used in the guaranty in Leeds, supra. Leeds found that this language did not waive the gener[133]*133al rule of law that the death of a guarantor ends the guaranty for future transactions. Further, LSA-C.C. Art. 3063 in effect at the time of this transaction provided:

The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.

The guaranty contract’s provision that the bank “may extend any obligation of the debtor one or more times ...

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Bluebook (online)
600 So. 2d 130, 1992 La. App. LEXIS 1378, 1992 WL 103536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-national-bank-in-shreveport-v-pipe-sales-of-shreveport-inc-lactapp-1992.