Green Acres Enterprises, Inc. v. Freeman

876 S.W.2d 636, 1994 Mo. App. LEXIS 357, 1994 WL 57325
CourtMissouri Court of Appeals
DecidedMarch 1, 1994
DocketWD 48081
StatusPublished
Cited by21 cases

This text of 876 S.W.2d 636 (Green Acres Enterprises, Inc. v. Freeman) 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
Green Acres Enterprises, Inc. v. Freeman, 876 S.W.2d 636, 1994 Mo. App. LEXIS 357, 1994 WL 57325 (Mo. Ct. App. 1994).

Opinion

FENNER, Judge.

Appellant, Francis B. Freeman, Jr. (Freeman), appeals the judgment of the trial court finding Freeman liable on a promissory note and entering judgment in favor of respondent, Green Acres Enterprises, Inc. (Green *638 Acres). The trial was by the court without a jury and judgment was entered without findings of fact or conclusions of law.

The record reflects that Green Acres borrowed approximately $418,000 from the First National Bank in Butler, Missouri, and loaned the money to Freeman. In July of 1979, W.K. Jenkins, who was president of Green Acres, met Freeman at the First National Bank in Butler and a promissory note was signed by Freeman and by Jenkins on behalf of Green Acres whereby Freeman promised to pay $418,000 plus interest of 13% and attorney’s fees of 10% to Green Acres on demand. The note evidenced a date of July 26, 1979, and Jenkins testified that the note was signed at the First National Bank in Butler, Missouri. The note was signed by Freeman, as president, on behalf of Jenway Investment Corporation (Jenway), and by Freeman individually as his personal obligation. Green Acres also received a mortgage, on land in Louisiana, to secure the note.

The trial court found that the total amount of the note was due in the sum of $418,000 plus interest in the amount of 13% per an-num from July 26, 1979, and attorney’s fees in the amount of 10%. Judgment was entered in favor of Green Acres and against Freeman in the amount of $2,086,015 plus attorney’s fees in the amount of $41,800 with post-judgment interest in the amount of 13%.

In its order, the trial court found that Counts I and II of the petition requested the same relief and entered judgment in favor of Green Acres and against Freeman as to Counts I and II. Count I alleged that Freeman was the principal obligor on the note and Count II alleged in the alternative that Freeman was liable as a guarantor on the note.

In our review of this court tried case the judgment of the trial court is to be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Furthermore, where the court has not entered findings of fact or conclusions of law, we review the evidence in the light most favorable to the trial court’s judgment, disregarding all evidence to the contrary. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989); McMurray v. Director of Revenue, 800 S.W.2d 820, 821 (Mo.App.1990).

In his first point on appeal, Freeman argues that the trial court erred by finding that he was both a principal obligor and a guarantor on the note because such a finding is contradictory and mutually destructive. In his third point, Freeman argues that the trial court’s judgment against him on Count II, as a guarantor of the note, is against the weight of the evidence.

On appeal from a bench tried case, the trial court is presumed to have made findings in accordance with the decree entered and judgment will be affirmed under any reasonable theory supported by the evidence, where the parties do not request findings of fact and conclusions of law and none are entered. Uelk v. Directory Distributing Associates, Inc., 803 S.W.2d 632, 634 (Mo.App.1991).

Freeman’s first point is without merit. Freeman, by counsel, admitted at trial that he was personally obligated on the note and that he did not contest that fact. Having admitted his personal liability, Freeman cannot escape the obligation by arguing that the trial court inconsistently found him to be both the principal obligor and the guarantor on the note.

Unless an instrument specifies otherwise, persons who sign a note as makers as part of the same transaction are jointly and severally liable. Landmark KCI Bank v. Marshall, 786 S.W.2d 132, 136 (Mo.App.1989). In the case at bar, Freeman signed the note individually as a maker with no indication to the contrary in the terms of the note. The note was also signed by Freeman on behalf of Jenway Investment Corporation. Freeman was personally liable as a maker of the note.

By its judgment, the trial court was merely saying that regardless of whether Freeman was considered the principal obligor or the guarantor, he was nonetheless liable under the terms of the note. Such a finding is not *639 inconsistent, contradictory or mutually destructive. The judgment of the trial court finding Freeman personally liable on the note is supported by the evidence and by Freeman’s own admission.

However, in regard to Freeman’s third point, guarantees are separate contracts, collateral to and independent of any underlying agreement. McFarland v. O’Gorman, 814 S.W.2d 692, 694 (Mo.App.1991). A guarantor’s liability arises primarily from the guarantee agreement itself. Id.

In the case at bar, there was no agreement for Freeman to act as a guarantor on the note and the evidence does not support such a finding. Freeman was liable as a co-maker, not as a guarantor.

Freeman’s first point is denied and his third point is sustained.

In his second point, Freeman argues that the trial court erred in finding that stock issued to Green Acres by Jenway did not satisfy the obligation under the note.

The record reflects that 500 shares of Jen-way stock were issued to Green Acres. Freeman argues that these shares were issued in satisfaction of the debt on the note. Green Acres argues that the stock was merely collateral on the debt under the note and that when foreclosed upon any money realized is to be applied as a credit against the judgment. 1

A promissory note imports a promise to pay in money and nothing else. Matter of Estate of White, 665 S.W.2d 67, 71 (Mo.App.1984). If payment is to be made in any fashion other than money, such proof must rest upon an independent agreement to that effect. H.W. Eddy Insurance, Inc. v. National Union Fire Insurance, 94 S.W.2d 1062, 1065-66 (Mo.App.1936). The record here does not reflect that any such agreement was made.

Considered in the light most favorable to the trial court’s judgment, the record reflects that the stock was issued to Green Acres on August 2,1979, and thereafter, on August 10, 1979, Freeman recorded the mortgage on the Louisiana land to secure the note. The mortgage reflected that the full debt on the note was due. If the stock had satisfied the debt, there would have been no reason to record the mortgage.

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876 S.W.2d 636, 1994 Mo. App. LEXIS 357, 1994 WL 57325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-acres-enterprises-inc-v-freeman-moctapp-1994.