Missouri Farmers Ass'n v. Coleman

676 S.W.2d 855, 1984 Mo. App. LEXIS 4095
CourtMissouri Court of Appeals
DecidedAugust 20, 1984
DocketNo. 13289
StatusPublished
Cited by6 cases

This text of 676 S.W.2d 855 (Missouri Farmers Ass'n v. Coleman) 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
Missouri Farmers Ass'n v. Coleman, 676 S.W.2d 855, 1984 Mo. App. LEXIS 4095 (Mo. Ct. App. 1984).

Opinion

FLANIGAN, Judge.

Plaintiff Missouri Farmers Association, Inc., a corporation, brought this action against defendants Orville Coleman and Peggy Coleman for the unpaid balance of an account arising out of the sale of merchandise, primarily hog feed, by plaintiff to defendant Orville Coleman. The trial court, sitting without a jury, found the issues in favor of plaintiff and awarded judgment of $10,197.20, plus interest and attorney’s fees, against both defendants. Defendants appeal.

At the trial both defendants were represented by the same attorney. Defendant Peggy Coleman testified at the trial but her co-defendant Orville Coleman, from whom she was divorced in 1980, did not appear. On this appeal the two defendants appear pro se.

Defendants’ first point is that the evidence is insufficient to support the judgment against defendant Orville Coleman for the reason that plaintiff “offered no evidence that any and all of the merchandise charged to defendant Orville Coleman was delivered to and received by him.”

The dealings between the parties commenced in 1977 and continued until 1981. At the trial plaintiff introduced, as Exhibit 3, numerous sales tickets showing the quantity, description, price, and amount of merchandise purchased from it by defendant Orville Coleman, together with the date of each transaction. Plaintiff’s Exhibit 4 consisted of monthly statements, beginning in July 1977 and ending in October 1981, which it had mailed to Orville Coleman and which showed the various transactions in the account. When the exhibits were offered defense counsel stated that he “had no objection to these insofar as they pertain to Orville Coleman.”

Essentially the argument of defendant Orville Coleman is that plaintiff’s proof was deficient because several of the tickets in Exhibit 3 were not signed by Orville Coleman or by anyone on his behalf. Many of the tickets were signed by him. Peggy Coleman signed one ticket in December 1980.

During his opening statement defense counsel said, “With regard to Orville Cole[857]*857man, unfortunately he did not keep records of his purchases and so on. He’s gone over this and states he really doesn’t know from his own records whether he got all these items or not.”

Cecil Quinn, manager of plaintiff’s “Exchange,” testified that both exhibits were prepared in the regular course of business and accurately showed merchandise delivered to the Coleman farm. Quinn testified that when the customer ordered merchandise by telephone or in person, tickets reflecting the order were made “on the same date the merchandise is loaded on the truck and delivery is made.” Quinn also testified that “if the customer is in the store at the time the ticket is made the customer signs the ticket, but when the merchandise is delivered to the farm the customer very seldom signs the ticket.... They will do so if they are present.”

Both exhibits reflected payments made from time to time on the account. Defendant Orville Coleman was given credit for those payments, several of which were made in 1981, after monthly statements had been mailed to him for more than four years.

The foregoing evidence, unrefuted by any testimony from Orville Coleman, was sufficient to justify the implied finding of the trial court that the merchandise shown on the two exhibits was delivered to Orville Coleman. The trial court was entitled to believe plaintiff’s explanation for the absence of Orville Coleman’s signature on some of the tickets in Exhibit 3. Defendants’ first point has no merit.

Defendants’ second point is that the evidence is insufficient to support the judgment against defendant Peggy Coleman for the reasons discussed and rejected under defendants’ first point and for the additional reason that Peggy Coleman’s liability, in any event, was limited to $500 because defendants’ “Credit Application” was in the stated amount of $500.

The petition alleged that Peggy Coleman was liable under a written guaranty by which she (and Orville Coleman) had guaranteed the payment of Orville Coleman’s account with plaintiff.

Near the outset of his dealings with plaintiff, Orville Coleman made out a “Credit Application” in which he listed certain information concerning himself and Peggy Coleman, to whom he was then married. The application recited: “I hereby apply for credit in the amount of $500.” The Credit Application was submitted to plaintiff, along with a written “Credit Agreement” which was signed by Orville Coleman and Peggy Coleman on August 10, 1977.

The Credit Agreement included the following (emphasis added):

1. Orville Coleman and Peggy Coleman, as guarantors, “guarantee payment to [plaintiff] of any and all loans, accounts, or advances made to or for the use, account or benefit of [Orville Coleman], whether evidenced by bills payable, open account ... or in any other manner whatsoever_ Notice of the creation of all indebtedness, renewals and extensions thereof, demand for payment, ... notice of ... non-payment, including acceptance of this guarantee, are waived ... upon non-payment at maturity [plaintiff] shall have the right to proceed directly against [the guarantors], jointly or severally, for the collection of all or any part of said indebtedness.

2. ... On monthly balance charges in excess of $500, there will be added a finance charge (method of calculation set forth).

4. [Guarantors] agree to pay an attorney’s fee (amount stipulated).

6. ... Nothing in this agreement shall require or compel [plaintiff] to extend credit to [Orville Coleman] or require or compel [Orville Coleman] to obtain credit from [plaintiff].

7. ... This is a continuing agreement, applying to all existing and future transactions between the parties until revoked in writing, delivered to [plaintiff], but such revocation shall not affect [the guaran[858]*858tors’] liability on any obligation contracted prior to receipt of written notice of revocation.

In Standard Meat Co. v. Taco Kid of Springfield, Inc., 554 S.W.2d 592, 595 (Mo.App.1977), this court said:

“A guaranty is a species of contract ... to be construed as other contracts.... It is a collateral agreement for another’s undertaking and is an independent contract which imposes responsibilities different from those imposed in an agreement to which it is collateral.... While it is held that contemporaneous agreements dealing with the same subject matter may be construed together as an aid in ascertaining the intention of the parties, this does not mean that those agreements constitute a single contract ... for the liability of the guarantor remains primarily dependent upon the guaranty contract. It is the guaranty agreement which contains the express conditions on the guarantor’s liability and which defines the obligations and rights of both the guarantor and guarantee.... Any ambiguity in a guaranty contract should arise in the first instance from the guaranty agreement itself and neither a court nor the parties will be permitted to create an ambiguity where none ex-ists_” (Authorities omitted.)

The Credit Agreement, which Peggy Coleman admittedly executed, guaranteed the payment of “any and all” loans and accounts made to Orville Coleman by plaintiff.

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Cite This Page — Counsel Stack

Bluebook (online)
676 S.W.2d 855, 1984 Mo. App. LEXIS 4095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-farmers-assn-v-coleman-moctapp-1984.