First National Bank of McCook v. Hull

204 N.W.2d 90, 189 Neb. 581, 11 U.C.C. Rep. Serv. (West) 1196, 1973 Neb. LEXIS 848
CourtNebraska Supreme Court
DecidedFebruary 2, 1973
Docket38224
StatusPublished
Cited by8 cases

This text of 204 N.W.2d 90 (First National Bank of McCook v. Hull) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank of McCook v. Hull, 204 N.W.2d 90, 189 Neb. 581, 11 U.C.C. Rep. Serv. (West) 1196, 1973 Neb. LEXIS 848 (Neb. 1973).

Opinions

Newton, J.

This is a replevin action based on two security agreements. Judgment was entered for plaintiff. Defendant’s assignments of error are: (1) That plaintiff was erroneously permitted to amend its petition by substituting a duplicate copy of the security agreement; (2) that parol evidence of an agreement for further credit was wrongfully excluded; and (3) that there was a material alteration of the security agreement. We affirm the judgment of the district court.

The first security agreement was executed in duplicate and a copy retained by each party. The agreement, as signed by the defendant R. W. Hull, provided: “September 3, 1965 R. W. Hull . . ., a resident of #3 Park-view Addition . . . McCook . . . Red Willow . . . Nebraska . . . (hereinafter called ‘DEBTOR’), for consideration grants to

Name: FIRST NATIONAL BANK
Office Address: McCOOK, NEBRASKA (hereinafter called ‘SECURED1 PARTY’) a security interest in the following property and any and all additions, accessions and substitutions thereto or therefore (herein[583]*583after called the ‘COLLATERAL’): All the motor vehicles listed and described on the attached sheet designated Exhibit A, now owned or after acquired
“Mark if applicable [ ] (a) All of Debtor’s inventory including all goods, merchandise, raw materials, goods in process, finished goods and all other tangible personal property now owned or hereafter acquired and held for sale or lease or furnished or to be furnished under contracts of service or used or consumed in Debtor’s business (all hereinafter called the ‘Inventory’), and in contract rights with respect thereto and proceeds of both. Without limitation the term ‘Inventory’ includes All Petroleum products, tires and other motor vehicle supplies, now owned or after acquired
“Mark if applicable [ X ] (b) All accounts, notes, drafts, chattel paper, acceptances and other forms of obligations and receivables now or hereafter received by or belonging to Debtor for goods sold by it or for services rendered by it, all guaranties and securities therefor, all right, title and interest of Debtor in the merchandise which gave rise thereto including the right of stoppage in transit, and all rights of Debtor earned or yet to be earned under contracts to sell goods or render services and in the proceeds thereof.
“The security interest granted hereby is to secure payment of the indebtedness evidenced by a certain promissory note xxxxx payable to the Secured Party, or order, xxxx together with renewals thereof and such additional sums as may hereafter be advanced to the Debtor or expended by the Secured Party or its assigns on behalf of the Debtor or his assigns for any purpose whatsoever and evidenced by notes, drafts, open account, or otherwise, with interest thereon at rates to be fixed at the time of advancing or expending such additional sums, provided, however, that the making of any such advances or expenditures shall be optional with Secured Party, or its assigns; and this security agreement shall secure the payment of any and all exten[584]*584sions or renewals and successive extensions or renewals of said note or notes, and of any indebtedness at any time owing to Secured Party, or its assigns, and shall further secure the payment of any and all indebtedness owing by Debtor to Secured Party, and for all of which this security agreement shall stand as a continuing security until paid (all of such indebtedness being referred to as the ‘Obligations’); and the Debtor agrees that the Secured Party, its successors or assigns, may apply any payments made on the Obligations secured hereby, at its option, on any of the notes or other indebtedness secured hereby.”

The security agreement was executed on September 3, 1965. On September 2, 1965, defendant R. W. Hull executed a financing statement which provided: “3. This Financing Statement covers the following indicated types or described items of property as collateral: All Petroleum products, tires and other motor vehicle supplies, and all Accounts, now owned or after acquired.”

A similar statement was executed by defendant on September 27, 1968, covering: “All Supplies, equipment, fixtures, machinery, tools, Bulk Storage Tanks and Loading dock and pumps.”

Sometime after the execution of the first security agreement the plaintiff inserted an “x” in the box preceding the provision for inclusion of defendant’s inventory and also inserted the following in the paragraph specifying the indebtedness covered: “Note for $12,000.00 dated August 12, 1965, and a note for $64,000 dated September 3, 1965, both payable according to the tenor thereof.”

Plaintiff was permitted to amend its petition by substituting the defendant’s unchanged copy of the security agreement for the bank’s copy which had been changed as noted. Defendants insist this cannot be done and cite State Farm Mutual Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N. W. 2d 542, which holds that a plaintiff in replevin must prove the title as he pleads it. In [585]*585that case ownership of the property in question was alleged when, in fact, plaintiff had only a “special ownership” and the petition was not amended in this regard. In the present case, only a special ownership under the security agreement was ever pleaded and the amendment in no way changed this factor. Possession of the replevined property was obtained under the security agreement. “The general rules governing the amendment of pleadings in civil actions generally, * * *, are applicable to amendments in replevin actions.” 46 Am. Jur., Replevin, § 107, p. 60. Of similar import are Pekin Plow Co. v. Wilson, 66 Neb. 115, 92 N. W. 176; Tackaberry & Co. v. Gilmore & Ruhl, 57 Neb. 450, 78 N. W. 32. We conclude that defendant’s first assignment is without foundation.

Defendant sought to introduce evidence indicating that plaintiff had agreed to extend further credit to him and failed to do so. This evidence was directly contradictory of the provisions of the written security agreement stating that additional advances “shall be optional with Secured Party.” In this respect the security agreement was complete on its face and “Parol evidence is inadmissible to vary a written agreement complete on its face.” See Jenkins v. Watson-Wilson Transp. System, Inc., 183 Neb. 634, 163 N. W. 2d 123.

As a defense to this action, defendant relied primarily on the assertion that there had been a material alteration of the security agreement. The first alteration is in regard to specification of the notes representing the indebtedness secured. Defendant does not deny that this was a correct statement of the indebtedness at the time the agreement was executed. Under such circumstances the element of fraud could not be involved and since it is apparent that indebtedness was owing by defendant to plaintiff, the specification of that indebtedness cannot be considered a material alteration.

The second alteration was by insertion of an “x” in the box prefacing the paragraph showing coverage of [586]*586the- debtor’s inventory. At the time of its execution, the security agreement included under this printed paragraph the typewritten statement: “All Petroleum products, tires and other motor vehicle supplies, now owned or after acquired.” The fact that this was typed in as a part of this paragraph indicated that the provisions of the paragraph were intended to be applicable.

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First National Bank of McCook v. Hull
204 N.W.2d 90 (Nebraska Supreme Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
204 N.W.2d 90, 189 Neb. 581, 11 U.C.C. Rep. Serv. (West) 1196, 1973 Neb. LEXIS 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-mccook-v-hull-neb-1973.