Riverside/Terra Corp. v. K & W Agricultural Services, Inc.

540 So. 2d 456, 1989 La. App. LEXIS 348, 1989 WL 20723
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
DocketNo. CA 87 1828
StatusPublished
Cited by3 cases

This text of 540 So. 2d 456 (Riverside/Terra Corp. v. K & W Agricultural Services, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riverside/Terra Corp. v. K & W Agricultural Services, Inc., 540 So. 2d 456, 1989 La. App. LEXIS 348, 1989 WL 20723 (La. Ct. App. 1989).

Opinion

COVINGTON, Chief Judge.

This is an action brought by Riverside/Terra Corporation against K & W Agricultural Services, Inc., Leon C. Winters and Kenneth Kahao to recover the amount of $129,665.10, plus interest, attorney fees and costs. In this proceeding, plaintiff sued to enforce a warehouse agreement between itself and the defendant corporation, and a continuing guaranty signed by the defendants Winters and Kahao. The defendants Winters and Ka-hao denied liability under the continuing guaranty on several grounds, although admitting they had executed it. The defendant corporation denied that the warehouse agreement was enforceable by the plaintiff, and the individual defendants denied executing the warehouse agreement. Certain other affirmative defenses were asserted by defendants.

The trial court rendered judgment in favor of Riverside/Terra Corporation and against K & W Agricultural Services, Inc., Leon C. Winters and Kenneth H. Kahao, jointly, severally and solidarily, in the principal amount prayed for, with interest fixed at 18% per annum from March 25, 1985, until paid, attorney fees in the amount of $2,999.83 and costs.

This judgment is on appeal to this court. We affirm.

The evidence establishes that on December 9, 1982, K & W Agricultural Services, Inc. was incorporated. On December 13, 1982, a warehouse agreement was executed between Terra Chemicals International, Inc. and any of its subsidaries and K & W Agricultural Services, Inc. Terra Chemicals International, Inc. is the parent company of Riverside/Terra Corporation, the plaintiff.

Following the execution of the warehouse agreement, on December 16, 1982, Winters and Kahao, the principal owners of K & W Agricultural Services, Inc. signed a continuing guaranty in favor of plaintiff in order to establish a line of credit for defendant corporation.

Subsequently, a new warehouse agreement was entered on February 23, 1983, between Riverside/Terra Corporation and K & W Agricultural Services, Inc. Credit was then extended to K & W, and the evidence shows that a principal balance of $129,665.10 was owed to the plaintiff.

In reaching his judgment in favor of plaintiff, the trial judge found that a valid contract existed from the date of the first warehouse agreement, and that there was no merit to defendants’ assertion that no obligation had been incurred at that time. The court also found the second warehouse agreement to be valid, and that the continuing guaranty which guaranteed the payment of “any and all indebtedness” of the defendant corporation obligated the guarantors, the individual defendants, to pay on default of the defendant corporation. The evidence shows a default.

The individual defendants further argued that they, as sureties, were not liable under the continuing guaranty because no fixed amount was set out in the guaranty. The trial judge found that the leaving of the amount blank “was intentional and the amount of liability was unlimited.” The trial judge further found that the continuing agreement provided for attorney fees and costs.

ASSIGNMENT OF ERROR NUMBER ONE

Appellants contend that the trial court erred in finding that a contract existed between K & W and Riverside/Terra before both parties entered into the warehouse agreement dated February 23, 1983.

Our review of the record convinces us that there is no merit to this argument. In Segura v. Louisiana Architects Selection Board, 340 So.2d 369 (La.App. 1 Cir.1976), writ denied, 342 So.2d 676 (La.1977), this [458]*458Court set forth the law concerning the issue raised by appellants.

In Segura, supra at 371, this Court discussed three different lines of authority regarding negotiation of contracts. Following this discussion the court held that:

We conclude that, if the facts of the case reveal that the parties did not intend to be bound until the execution of a written document, no contract can exist until that event takes place. However, even when a written document is contemplated, if the parties intend to be bound by their original verbal agreement, then a contract subsists from that time, and the writing, if executed, is a memorial of that agreement.

There is nothing in the record which would indicate that the parties’ agreement was contingent on a subsequent written document. None of the parties testified that there would be no contract unless the agreement was reduced to writing. The parties entered into a binding verbal contract, which was subsequently reduced to writing. We hold that the written contract is a memorial of the prior verbal agreement.

Moreover, the written contract was signed by Winters on behalf of K & W. Although not signed by Riverside/Terra, there was an agreement between the parties under those circumstances. In addition, the parties, on December 16, 1982, three days after the execution by Winters of the first “warehouse agreement”, signed the continuing guaranty. Later, on February 23, 1983, the parties signed the second “warehouse agreement”. Winters and Mi-chalski, Regional Credit Manager for plaintiff, testified that the second “warehouse agreement” was a continuation of the first one. This supports the finding of the trial court that all parties intended to be bound by the original agreement of December 13, 1982.

As previously stated, Winters signed the contract of December 13, 1982, but it was not signed by Riverside/Terra. Both parties signed the February 23, 1983 contract, which was a continuation of the December 13, 1982 document.

In Fredericks v. Fasnacht, 30 La.Ann. 117 (1878), the Court said:

It is elementary in our law, that where the negotiations contemplate and provide that there shall be a contract in writing, neither party is bound until the writing is perfected and signed. The distinction is manifest between those cases in which there is a complete verbal contract, which the law does not require to be reduced to writing, and a subsequent agreement that it shall be reduced to writing, and those in which, as in this case, it is a part of the bargain that the contract shall be reduced to writing. In the first class of cases the original verbal contract is in no manner impaired by the failure to carry out the subsequent agreement to put it in writing. In the second class of cases, the final consent is suspended; the contract is inchoate, incomplete and it cannot be enforced until it is signed by all the parties.

Thus, even if the oral contract needed to be reduced to writing, under the Freder-icks case, supra, the oral contract would have been suspended only until the contract was reduced to writing. Under these circumstances, by signing the contract on December 13, 1982 and the second “warehouse agreement” on February 23, 1983, the suspensive condition would be satisfied, so that the contract relates back to the original agreement of December 13, 1982,

In McIntire v. Industrial Securities Corporation, 158 So. 849, 851 (La.App. Orl., 1935), the Court, in addressing this issue stated, as follows:

It is undoubtedly true that where, as in the Laroussini [v. Werlein, 52 La.Ann.

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Bluebook (online)
540 So. 2d 456, 1989 La. App. LEXIS 348, 1989 WL 20723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riversideterra-corp-v-k-w-agricultural-services-inc-lactapp-1989.