Landmark KCI Bank v. Marshall

786 S.W.2d 132, 1989 Mo. App. LEXIS 1770, 1989 WL 149356
CourtMissouri Court of Appeals
DecidedDecember 12, 1989
DocketNo. WD 41431
StatusPublished
Cited by9 cases

This text of 786 S.W.2d 132 (Landmark KCI Bank v. Marshall) 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
Landmark KCI Bank v. Marshall, 786 S.W.2d 132, 1989 Mo. App. LEXIS 1770, 1989 WL 149356 (Mo. Ct. App. 1989).

Opinion

SHANGLER, Presiding Judge.

The defendants Don Marshall and Nancy Marshall appeal from a judgment entered against them as accommodation makers of a promissory note made payable to the plaintiff Landmark KCI Bank. They contend that they were discharged from liability on the instrument by the release by the Bank of Stacy Marshall, a maker on the note.

The judgment was for a deficiency balance on the fourth ⅛ a series of promissory notes given to evidence an original indebtedness of $80,000. Each previous note was cancelled and extinguished as paid by renewal. The original note was executed on October 1, 1981, by Brett Marshall and Stacy Marshall [then his wife] as borrowers, and bore the signatures of Don Marshall and Nancy Marshall [the parents] and Richard Nickerson and Jeanne Nickerson— husband and wife. The note for $80,000 was due on August 1, 1982, and bore interest at the rate of 18.5 percent per annum. The money from the loan was for Brett Marshall, then a farm employee of the Nickersons, to purchase farm equipment from Richard Nickerson. The machinery became security for the promissory note.

The obligation on the original note was reduced to $73,992, and on August 1, 1982, was replaced by a renewal instrument prepared by the Bank for signatures of the original six parties. The note was signed by all of them except Stacy Marshall. No payment was made during that year, and on August 1, 1983, the Bank prepared another renewal note for six signatures that recited the same principal amount and the same rate of interest. Stacy Marshall did not sign that renewal note. A third renewal note was executed by the same five signatories on August 1, 1984, for $69,992 due on February 1, 1985, and payable at the rate of interest of 14 percent per an-num. That note was unpaid on the due date, but Richard and Jeanne Nickerson refused to sign another renewal note. The Bank and the three Marshalls, Brett and his parents, agreed to extend payment of the August 1, 1984 note at the reduced interest rate of 10 percent per annum and [135]*135payment of principal and interest in the sum of $500 per month. Brett Marshall defaulted, and an unpaid principal balance of $31,725.02 together with accrued interest of $4,267.87 remained after the sale of the security. The demand for payment of the deficiency was not honored.

The Bank instituted suit for the deficiency and for an attorney fee under the terms of the August 1, 1984, promissory note. The six signatories on the original note of October 1, 1981, were joined as defendants, and included Stacy Marshall. The defendants Nickerson counterclaimed against the Bank — on what theory, does not appear. The Nickersons did not appear at the trial and the counterclaim was dismissed on the motion of the Bank for failure to prosecute. The defendants Don Marshall and Nancy Marshall cross-claimed for indemnity against the defendants Nickerson as did the defendant Brett Marshall. The Nicker-sons invoked the protection of the bankruptcy laws, and the cross-claims for indemnity against them were stayed in accordance with 11 U.S.C. § 362.

In the course of the pendency of the action, the plaintiff Bank dismissed the claim against Stacy Marshall with prejudice. Thereafter, the defendant Don and Nancy Marshall moved for summary judgment on the ground that the release of Stacy Marshall from her obligations on the original promissory note without their consent impaired their right of recourse against that signatory and discharged their liability to the plaintiff Bank under the note. The motion was denied.

The court received evidence on the claim of the plaintiff Bank, denied the contention of the Marshall parents of release from accommodation liability on the note, and entered judgment against the defendants Brett Marshall, the parents Marshall and the Nickersons for the principal sum of $31,725.02 together with $4,267.87 accrued interest and daily interest of $6.69 from the date of judgment, and an attorney fee of $8,925. The defendants Nickerson filed for bankruptcy and the effect of the judgment as well as of the cross-claims for indemnity against them of the Marshalls — parents and son — was stayed.

The defendant Brett Marshall does not contest the judgment, nor — of course — do the Nickersons. The appellants are the defendants Don and Nancy Marshall, parents of Brett Marshall. They make one essential contention, replicated as a complaint from the denial of summary judgment and as an aggrievement from the judgment on the merits. It is that the release by the Bank of Stacy Marshall, a co-maker on the note, without their consent as accommodation makers, impaired their right of recourse against that debtor party and so operated to discharge their liability on the instrument.

The propriety of an order to deny summary judgment is not appealable. The issues raised by the pleadings nevertheless remain in the case, and when decided on full evidence are then properly subjects of an appeal. Parker v. Wallace, 431 S.W.2d 136, 137[1, 2] (Mo.1968). We turn then to the contention of the Marshall parents that the judgment of liability adjudged against them as accommodation makers on the promissory note to the Bank was error because the release by the Bank of Stacy Marshall, a co-maker of the obligation, discharged their liability on the instrument under precepts of the Uniform Commercial Code.

That argument rests on premises that (1) Stacy Marshall signed the promissory note of October 1, 1981, in the capacity of comaker; (2) the Marshall parents as accommodation makers were entitled to recourse against Stacy Marshall by way of subrogation for any payment of that paper they made to the holder Bank; (3) release of the co-maker Stacy Marshall from that instrument without consent of the Marshalls impaired that right of recourse and operated to discharge them from liability on that paper.

Two of these premises questioned the express, findings entered by the trial court adjunctive to the judgment:

On October 1, 1981, Stacy Marshall signed her name to said promissory note in the capacity of Brett Marshall’s wife [136]*136in order for Brett Marshall to purchase equipment for his farming business and she was therefore an accommodation maker both as to her husband and to defendants Richard Nickerson, Jeanne Nickerson, Don Marshall and Nancy Marshall.
Based upon the evidence taken as a whole and the credibility of the parties and witnesses that testified, the court finds that •plaintiffs discharge of Stacy Marshall on the October 1, 1981 note was consented to . by accommodation makers Don and Nancy Marshall and Richard and Jeanne Nickerson [emphasis added].

We respond to the contentions of error as posed by the appellants Don and Nancy Marshall. Whether Stacy Marshall signed the promissory note of October 1, 1981, in the capacity of co-maker or of accommodation maker determines the extent of recourse open to Don and Nancy Marshall as accommodation makers against Stacy Marshall, but does not affect their right to release from liability on the paper if, as they contend, the holder Bank discharged Stacy Marshall from their obligation on the note without their consent.

Stacy Marshall: Co-maker or Accommodation Maker?

The contract liability of the maker of a note is unconditional and absolute.

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Cite This Page — Counsel Stack

Bluebook (online)
786 S.W.2d 132, 1989 Mo. App. LEXIS 1770, 1989 WL 149356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landmark-kci-bank-v-marshall-moctapp-1989.