Farmers & Merchants Bank v. Douglas Hereford Ranch, Inc. (In re Douglas Hereford Ranch, Inc.)

68 B.R. 836, 1987 Bankr. LEXIS 17
CourtUnited States Bankruptcy Court, D. Montana
DecidedJanuary 9, 1987
DocketBankruptcy Nos. 485-00568, 485-00575, 485-00677 and 485-00574; Adv. No. 486/0053
StatusPublished

This text of 68 B.R. 836 (Farmers & Merchants Bank v. Douglas Hereford Ranch, Inc. (In re Douglas Hereford Ranch, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers & Merchants Bank v. Douglas Hereford Ranch, Inc. (In re Douglas Hereford Ranch, Inc.), 68 B.R. 836, 1987 Bankr. LEXIS 17 (Mont. 1987).

Opinion

ORDER

JOHN L. PETERSON, Bankruptcy Judge.

This adversary proceeding was commenced September 25, 1986, by the Farmers and Merchants Bank of Beach, North Dakota, (hereinafter Bank), to determine the extent of the Bank’s security interest in property of the Debtors and to determine whether documents executed by the Debtors constitute personal guarantees for the corporate obligation. On the same date, [837]*837the Bank filed a motion for relief from the automatic stay to foreclose on the collateral subject to their security interest. The Debtors resist the motion on the grounds the Bank is adequately protected and dispute the Bank’s claim in the motion that the individual Debtors personally guaranteed the corporate obligation. After a preliminary hearing on the motion, final hearing was set for November 20, 1986. Meanwhile, the Debtors’ answer in the adversary matter was filed October 16, 1986, placing the cause at issue, and thus both matters were heard November 20, 1986. The Court, in receipt of the parties post-trial memorandums, deems the matter submitted. Due to the overlap and interrelationship between the motion and the complaint, both matters will be treated together-in this opinion.

The Debtors in this action are Douglas Hereford Ranch, Inc.; Paul 0. Douglas; Constance F. Douglas; and Cleone E. Douglas, each case having been filed separately, but consolidated by Order of this Court January 20, 1986.1 The individuals are all shareholders of Douglas Hereford Ranch, Inc., with Paul 0. Douglas, President, and Cleone E. Douglas, Secretary/Treasurer. Douglas Hereford Ranch is presently in default on its obligations to the Bank, as evidenced by three notes, which stand as follows:

(#1) Note 110190
Date executed May 9, 1984
Face amount $367,086.61
Interest rate per annum 13V2%
Due Date May 9, 1985
Default Date May 9, 1985
Principal balance due $318,334.34
Interest due to 10/31/86 (petition date) $69,628.74
Daily accrued on interest $117.74
Party executing note: Douglas Hereford Ranch, Inc.; Paul O. Douglas; Cleone E. Douglas
(#2) Note 112981
Date executed June 24, 1985
Face amount $3,500.00
Interest rate per annum 12%
Due date Nov. 1, 1985
Default date Nov. 1, 1985
Principal balance due $3,500.00
Interest due to 10/31/85 $145.83
Daily accrual on interest $1.15
Party executing note: Douglas Hereford Ranch, Inc.; Cleone E. Douglas
(#3) Note 110191
Date executed May 9, 1984
Face amount $85,000.00
Interest rate per annum »h%
Due date April 18, 1985
Default date April 18, 1985
Principal balance due $1,330.82
Interest due to 10/31/85 -0-
[838]*838(#3) Note 110191
Daily accrual on interest $.31
Party executing note: Cleone Douglas

Thus, when combined, the obligation of Douglas Hereford Ranch, Inc. to the Bank stands at:

Principal balance - $323,165.16
Accrued interest to 10/31/85 - 69,774.57
Daily accrual of interest since 10/31/85 - 119.20

There appears to be no issue as to the balance of the obligation. The real issue involves whether documents executed by the Douglases constitute guarantees for the corporate debt.

On or about December 27, 1974, Cleone E. Douglas and Morris B. Douglas entered into an agreement, prepared by Farmers and Merchants Bank on Farmers and Merchants Bank letterhead which recites:

For value received and for the purpose of enabling Morris B. & Cleone E. Douglas to guarantee their indebtedness to you and to obtain credit from you, and for the purpose of securing their present or any future indebtedness to you, and to obtain credit from you, and for the purpose of securing their present or any future indebtedness to you, of any kind and character, however incurred, or created, We, the undersigned hereby guarantee the prompt payment, at maturity, of all notes given by the Corporation to you, and guarantee all of their corporate indebtedness to you present, and future, of any kind, and character.
Notice of acceptance of this guarantee; and notice of nonpayment and protest, or of the creation or of the existence of the indebtedness, or liability covered by the within named corporation, are hereby waived.
This instrument shall apply to all existing and to all future indebtedness and liability until written notice to you, from the undersigned, is given, not to make any further advances upon the faith thereof. (Emphasis supplied)

The document was then signed by Cleone E. Douglas and Morris B. Douglas, and duly notarized.

On or about January 8, 1975, Paul 0. Douglas and Connie F. Douglas (Constance) executed, signed and caused to be notarized a document identical to the preceding, the only change being the names of the parties to the document. Shortly before execution of the document the Douglas ranching operation was incorporated into Douglas Hereford Ranch, Inc. The documents in question were discussed by the parties and Mr. James Vols, then an officer with the Bank. The testimony of Paul Douglas, Constance Douglas and Cleone Douglas is consistent in their belief that at the time the purported guarantees were executed their purpose was to allow the Douglases to engage in transactions on behalf of the corporation, such as signing and depositing checks and conducting business transactions. The Douglases deny they were ever informed nor was it explained that execution of the documents would render them personally liable for the corporate debt and that they had no intention of agreeing to such a bargain. The Douglases contend they were not aware the documents were being treated as personal guarantees until the notes were called and demand was personally made in late 1984 or early 1985.

On additional comment should be noted. While there appears to be a dispute between the parties as to the effect and intent of the documents in question, no issue of fraud or misrepresentation has either been raised in the pleadings or at trial.

A few principles of basic contract law must be considered in reaching a decision on the issue.2 The construction of a written contract to determine its legal effect is always a question of law for the court to decide. Hager v. Devil’s Lake Public School District, 301 N.W.2d 630 (N.D.

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301 N.W.2d 630 (North Dakota Supreme Court, 1981)
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Bluebook (online)
68 B.R. 836, 1987 Bankr. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-merchants-bank-v-douglas-hereford-ranch-inc-in-re-douglas-mtb-1987.