Farmington National Bank v. Basin Plastics, Inc.

615 P.2d 985, 94 N.M. 668
CourtNew Mexico Supreme Court
DecidedAugust 22, 1980
Docket12600
StatusPublished
Cited by9 cases

This text of 615 P.2d 985 (Farmington National Bank v. Basin Plastics, Inc.) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmington National Bank v. Basin Plastics, Inc., 615 P.2d 985, 94 N.M. 668 (N.M. 1980).

Opinion

OPINION

FELTER, Justice.

The personal representative of Dorothy Ford, now deceased, defendant, cross-claimant and appellee (Ford) recovered judgment for contribution from Herb McNutt, defendant, cross-claimant and appellant (McNutt). We affirm.

Basin Plastics, Inc., defendant (Basin Plastics), gave Farmington National Bank, plaintiff (Bank), its promissory note for a loan in the principal sum of $56,000.00. McNutt eo-signed the note as an accommodation maker and Ford secured payment of the note by a mortgage to the Bank upon real estate which she owned. After an extension of time for payment of the note and after partial payment by Basin Plastics, default was made and the Bank brought suit against Basin Plastics, Ford and McNutt for the balance due on the note and for foreclosure of the Ford mortgage.

McNutt claimed that the extension of time for payment of the note by the Bank was unilateral and without his agreement or waiver of his rights. Without participation or consent of McNutt, Ford compromised, settled and paid the balance of the indebtedness due the Bank on the promissory note. All claims by or counter-claims against the Bank were dismissed with prejudice. It is claimed by Ford that the settlement and the compromised amount paid to the Bank were favorable to the defendants. McNutt’s assignments of error are:

(1) The court erred in finding and concluding that he and Ford consented to extensions of time for payment of the note and waived the right to claim they were discharged by the Bank’s extensions of time for payment.
(2) The court erred in finding and concluding that the Bank had no obligation to secure payment of the note with any collateral other than the mortgage on Ford’s property.
(8) The court erred in finding and concluding that McNutt, as an accommodation maker, was not discharged from liability under various provisions of the Uniform Commercial Code.
(4) The court erred in finding and concluding that Ford paid the Bank under compulsion and not voluntarily, and that. McNutt is liable to Ford for contribution as a result of the payment.
(5) The court erred in finding and concluding that Ford is entitled to interest on the amount of the judgment against McNutt from the date Ford paid the Bank.

Each of McNutt’s claims of error will be discussed separately in the order listed.

POINT I

The promissory note to which McNutt is the accommodation maker, inter alia, contains the following recitals:

The makers, endorsers and sureties hereof hereby severally waive protest, presentment, demand and notice of protest and nonpayment in case this note (or any payment due hereunder) is not paid when due, and they agree to any renewal of this note or to any extension, acceleration, or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral and to the addition of release of any party or person primarily or secondarily liable without prejudice to the holder or notice to makers, endorsers and sureties. (Emphasis added.)

McNutt relies on a handwritten notation upon the note jacket, “not to be renewed.” This notation was made by Michael Dennis, a Bank employee, at the time the note was executed. It was made by Dennis on his own volition and not at the request of Basin Plastics, Ford or McNutt. The notation was never a part of the contract between the Bank and Basin Plastics, Ford or McNutt. In fact, McNutt indicated he had never seen the note jacket bearing the notation “not to be renewed” prior to the time it was shown to him on the witness stand, but later testified that he had witnessed Dennis writing and initialing the notation.

It has been held that an agreement between a payee and maker of a note to extend the time of payment of the note discharges any co-maker who has not consented to the extension. American State Bank v. Leaver, 261 Iowa 124, 153 N.W.2d 348 (1967). Although the Uniform Commercial Code was not in effect when the note in question was executed in Iowa, nevertheless the court stated that the result thereunder would have been the same. Where, as in the case at bar, an accommodation maker by the terms of the note waives all defenses on the ground of any extensions of time, he is held bound to that provision in the note. Midland-Ross Corporation v. Swartz, 185 Neb. 484, 176 N.W.2d 735 (1970). While we find no New Mexico decisions precisely on point, we agree with and adopt the rule set forth in Midland-Ross Corporation v. Swartz. Clearly, McNutt, in the note itself, waived any objections to extensions in the time of payment granted by the Bank, and objection now to such extensions is without merit.

POINT II

McNutt argues that he had an agreement with the Bank that the Bank would take and secure assignments of accounts receivable due Basin Plastics in amounts in excess of the note balance as collateral, but that the Bank failed to do so. A memorandum in McNutt’s handwriting of Dennis’ intentions with respect to the accounts receivable indicated that Dennis expected pledges of government contracts in the sum of $101,000.00, plus additional collateral in the Gallup area. The note signed by McNutt did not either expressly or impliedly require the Bank to take or perfect any security at all for the note. The note makes no reference to collateral except to consent to “exchange or release of collateral.” McNutt argues that he had an oral agreement with the Bank that it would secure and perfect the accounts receivable that were due to Basin Plastics. The purported oral agreement is in conflict with the written note which consents to an exchange or release of collateral by the Bank. If a release of collateral by the Bank would afford no valid defense to the note, then a failure to secure and perfect the accounts receivable as collateral could not stand as a defense either.

Even if the accounts receivable had been secured and perfected as collateral, the Bank at any time thereafter under the terms of the note could have released such accounts receivable as collateral. With the option to release collateral in the Bank, to hold the Bank to such a purported oral agreement would be an idle and futile act. Moreover, Section 55-2-202, N.M.S.A.1978, of the Uniform Commercial Code, provides in pertinent part as follows:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented: .

The parol evidence rule applicable to written contracts generally is also applicable to bills and notes.

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Cite This Page — Counsel Stack

Bluebook (online)
615 P.2d 985, 94 N.M. 668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmington-national-bank-v-basin-plastics-inc-nm-1980.