Consumers Oil Co. v. American National Bank

713 S.W.2d 598, 1986 Mo. App. LEXIS 4366
CourtMissouri Court of Appeals
DecidedJuly 15, 1986
DocketNo. WD 37816
StatusPublished
Cited by7 cases

This text of 713 S.W.2d 598 (Consumers Oil Co. v. American National Bank) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consumers Oil Co. v. American National Bank, 713 S.W.2d 598, 1986 Mo. App. LEXIS 4366 (Mo. Ct. App. 1986).

Opinion

BERREY, Judge.

Consumers Oil Company (hereinafter Consumers) appeals the trial court granting summary judgment to respondent American National Bank (hereinafter bank).

Roger Carson was a large farm operator in Andrew County, who in the course of his farming operations arranged for a line of credit with the respondent bank. Consumers, a farm supply co-op, contends it sold farm supplies to him based upon a letter informing it of this fact; it claims the letter written by Jim Spiking, an assistant vice-president of the bank, constituted a guarantee on part of the bank to pay the bills of Roger Carson. The letter in its entirety is set forth below:

April 26, 1984
Mr. Ken Schinkel
CONSUMER COOP
Box 130
Maryville, MO 64468
Dear Mr. Schinkel:
This letter is to inform you of American National’s commitment to provide operating money to Roger Carson, for 1984. This is in regard to the general crop expenses associated with Roger’s planned cash flow.
This commitment shall be in effect so long as there is no substantial change in [599]*599Mr. Carson’s financial condition as would, in the judgment of this bank, adversely affect his ability to repay his indebtedness.
If you have any questions in regard to this, please feel free to call.
Sincerely,
Jim Spiking
Assistant Vice President
JS:ms
THUR2/G1

Consumers filed this action to recover damages against Mr. Carson and his wife as well as the bank. As to Mr. Carson,1 Consumers obtained a jury verdict against him in the sum of $71,605.95 in principal and $20,411.99 in interest. This judgment is not part of this appeal.

The trial court granted the bank’s motion for summary judgment on Consumers’ claim the bank was responsible for Mr. Carson’s indebtedness as a guarantor. Appeal is taken from this order.

Appellant raises two points on appeals: (1) that the trial court erred in granting summary judgment to the bank and (2) that the trial court erred in not permitting appellant to file an amended petition.

In reviewing a summary judgment the court must determine whether or not there is a genuine issue of material fact such as to require a trial and whether the prevailing party is entitled to judgment as a matter of law. Butcher v. Ramsey, 628 S.W.2d 912, 914 (Mo.App.1982). All factual inferences are taken against the party seeking a summary judgment and in favor of the party opposing summary judgment. Howard Construction Company v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 226 (Mo.App.1983).

On August 21, 1985, Consumers filed its “Request for Trial Setting” stating that the “case is at issue, all discovery has been completed on behalf of plaintiff and request is hereby made that it be placed on the court’s jury trial docket.” On November 14, 1985, the bank filed its motion for summary judgment with attached suggestions and affidavits of Jim Spiking and David Cox employees of the bank. Consumers filed an answer to the motion for summary judgment on November 20, 1985. The answer was verified but contained no separate affidavits. The answer contains this conclusion under point 4:

4. It is apparent from the factual statements set out above or adopted herein, that serious matters of justiciable nature are unresolved in this cause, and can only be resolved by the trier of facts. There is no basis for summary judgment. The pleadings, depositions, and affidavits in the file show that there are genuine issues as to material facts, and that neither party is entitled to a judgment as a matter of law. VAMR 74.04(c).

Consumers fails to set forth specific facts which would demonstrate a material issue for trial. The answer relied upon by Consumers refers back to statements made in previous hearings, depositions and interrogatories and does not follow Rule 74.-04(e). This court fails to find a genuine issue of material fact and holds that the bank is not guarantor as a matter of law.

A fair reading of the letter leads to only one conclusion that the bank was providing “operating money to Roger Carson, for 1984.” There was no evidence that the bank guaranteed to pay Roger’s expenses. It simply provided that Mr. Carson will have the funds to operate his farm in 1984. This letter is not a commitment for the bank to pay any portion of Roger’s debts to any lender. Consumers own petition on account alleges that “[I]n order to insure and guarantee that defendants Carson could operate as farmers in the year 1984, defendant bank represented in writing committed itself to provide the funds to the defendants.” Both this allegation and the bank’s letter constitute sufficient grounds for the trial court to find no material fact was at issue.

The liability of a guarantor is limited by the specific terms of the instrument. A [600]*600guarantor is entitled to a strict construction of his obligation; he is not bound beyond the letter of his obligation and nothing may be implied against the guarantor. Citizens Bank of Smithville v. Lair, 687 S.W.2d 268, 270 (Mo.App.1985). “[N]o stretching or extension of its terms can be indulged in order to hold the guarantor liable on his guaranty.” Zoglin v. Layland, 328 S.W.2d 718, 721 (Mo.App.1959).

When the intention is clearly stated in a written guaranty the liability of the guarantor may not be enlarged or extended beyond its specific terms. As stated, it is clear the bank guaranteed operating funds to Mr. Carson. It did not guarantee payment of Carson’s bills of account in the event Mr. Carson failed to pay. Plaintiff’s point one is denied.

Consumers for its second point alleges trial court error because the trial court denied it leave to file an amended petition alleging fraud. Consumers’ request was made subsequent to the summary judgment entered by Judge Connett.

Consumers relies on Rule 55.33(a) which provides that “a party may amend his pleading only by leave of court ... and leave shall be fully given when justice so requires.” Appellant also anticipates four cases the respondent will cite and, with futility, attempts to distinguish them from the case at bar.

The function of Rule 55.33 is to permit matters to be presented that were overlooked or unknown when the original action was filed, without changing the original cause of action DeArmon v. City of St. Louis, 525 S.W.2d 795, 802 (Mo.App.1975). Prejudice affecting the opposing party is the reason used most frequently in denying leave to amend.

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Bluebook (online)
713 S.W.2d 598, 1986 Mo. App. LEXIS 4366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumers-oil-co-v-american-national-bank-moctapp-1986.