United Siding Supply, Inc. v. Residential Improvement Services, Inc.

854 S.W.2d 464, 1993 Mo. App. LEXIS 330, 1993 WL 64627
CourtMissouri Court of Appeals
DecidedMarch 9, 1993
DocketNo. WD 45801
StatusPublished
Cited by9 cases

This text of 854 S.W.2d 464 (United Siding Supply, Inc. v. Residential Improvement Services, Inc.) 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
United Siding Supply, Inc. v. Residential Improvement Services, Inc., 854 S.W.2d 464, 1993 Mo. App. LEXIS 330, 1993 WL 64627 (Mo. Ct. App. 1993).

Opinion

BRECKENRIDGE, Presiding Judge.

United Siding Supply (United Siding) appeals from the trial court’s judgment that David P. Lindsey, president of Residential Improvement Services, Inc. (R.I.S.), is not personally liable for the debt R.I.S. owes United Siding. On appeal, United Siding argues that the trial court erred in finding that the agreement executed by Lindsey is not a personal guaranty because, as a mat[466]*466ter of law, the agreement subjected Lindsey to personal liability on the account balance R.I.S. owes United Siding.

The judgment is affirmed.

R.I.S. was involved in the retail sale of residential siding. United Siding, an Oklahoma corporation, was a siding supplier to R.I.S. On September 12, 1984, Eugene Harrison, president of United Siding, met with Lindsey. At Harrison’s request, Lindsey executed two documents, one on each side of the same sheet of paper. One side of the paper was labeled “Credit Application” which Lindsey completed and signed “David P. Lindsey, Pres.” The other side of the paper was titled “Personal Guarantee and Suretyship Agreement” which Lindsey signed “David P. Lindsey, Pres. R.I.S. Inc.” Lindsey testified that he told Harrison that he would not sign the guaranty as a personal guaranty but only on behalf of R.I.S. Lindsey also testified that Harrison agreed to this and accepted the guaranty as it was signed. The guaranty agreement states that it shall be construed under the laws of Oklahoma.

In 1987, United Siding filed suit against R.I.S. and Lindsey. At the time of trial, R.I.S. owed United Siding $54,275.26, including interest. The trial court entered judgment for United Siding and against R.I.S. in that amount but refused to hold Lindsey personally liable for the debt.

United Siding asserts one point on appeal in which it argues that the trial court erred in ruling that the Personal Guarantee and Suretyship Agreement executed by David P. Lindsey was not a personal guaranty because the agreement is, as a matter of law, the personal guaranty of David P. Lindsey and thus subjects him to liability for the account balance due United Siding from R.I.S. In a court-tried action, the trial court’s decision will be affirmed on appeal unless there is no substantial evidence to support the decision, it is against the weight of the evidence or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). On appeal of a court-tried case, the court will accept as true the evidence, and inferences that can be made from it, favorable to the trial court’s judgment and disregard all contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

Although the agreement was executed in Missouri, it specifies that it is to be construed according to Oklahoma law. The parties’ choice of Oklahoma law is valid because parties to a contract may agree, in good faith, that the law of a certain state is to govern their agreement. American Institute of Marketing Sys., Inc. v. Brooks, 469 S.W.2d 932, 935 (Mo.App.1971); Yeats v. Dodson, 127 S.W.2d 652, 656 (Mo.1939).

Oklahoma law is undeveloped regarding whether the form of signature can create ambiguity concerning the capacity in which the signator acts in executing a guaranty. United Siding bases its allegations of error on a slip opinion from the United States Court of Appeals, Tenth Circuit, which applies Oklahoma law. The record reflects that counsel for United Siding indicated that prior to this slip opinion, “there was no Oklahoma case law to present” in support of United Siding’s position. The first page of the slip opinion states that, “This order and judgment has no precedential value.” As a result, United Siding’s arguments regarding the Tenth Circuit slip opinion are without merit and the court will not address them.

Under Oklahoma law, a guaranty is defined as “a promise to answer for the debt, default or miscarriage of another person.” Lum v. Lee Way Motor Freight, Inc., 757 P.2d 810, 814 (Okla.1987). Because the guarantor’s obligation is contractual, a guaranty is generally construed under the rules of contract construction. IN A Life Ins. Co. v. Brandywine Associates, 800 P.2d 1073, 1076 (Okla.Ct.App.1990). The meaning of the guaranty is controlled by the intent of the parties. Lum, 757 P.2d at 815. If the language of the agreement is clear and explicit then its purpose and meaning must be ascertained from the document without considering parol evidence. Rucker v. Republic Supply Company, 415 P.2d 951, 953 (Okla.1966). If the guaranty is ambig[467]*467uous, the court must place itself in the parties’ position at the time the contract was made and consider the surrounding circumstances and purposes of the transaction, as well as the document. Lum, 757 P.2d at 815. Whether the guaranty is ambiguous is a question of law for the court. Id.

United Siding asserts that the terms and conditions of the guaranty are consistent and unambiguous. The trial court found the guaranty to be ambiguous and heard testimony regarding the parties’ intentions and the circumstances surrounding the signing of the document. The trial court found ambiguity because the placement of the guaranty on the back of the credit application could be interpreted to mean that signing the back of the credit application obligated the corporation applying for credit to pay for anything purchased on credit, and because Lindsey signed both the guaranty and the credit application with a corporate signature. United Siding argues that the guaranty contains language clearly indicating that it is Lindsey’s personal guaranty and that the principal debtor and the guarantor are separate entities.

Lindsey argues that the signature, when combined with the guaranty’s failure to identify the debtor, renders the guaranty ambiguous. Lindsey also argues that Oklahoma has adopted the Uniform Commercial Code and that its provisions control in this case. Although the Oklahoma Supreme Court held in Harris v. Milam, 389 P.2d 638, 641 (Okla.1964), that a signature can be the source of ambiguity in a negotiable instrument, Harris is applicable only by analogy to the case at hand because a guaranty is not a negotiable instrument. A negotiable instrument must be signed by the maker or drawer; contain an unconditional promise or order to pay a sum certain on demand or at a definite time; and be payable to order or bearer. Shepherd Mall St. Bank v. Johnson, 603 P.2d 1115, 1117 (Okla.1979). A guaranty does not fit this definition because it lacks a promise to pay a sum certain, is not payable on demand or at a definite time, and is not payable to order or bearer. Id. As a result, Lindsey’s argument that Article 3 of the Uniform Commercial Code controls in the case at hand is without merit. The Harris court recognized that when “anything appears on the face of the instrument which suggests doubt or ambiguity as to the party bound, or the character in which the persons who signed the instrument acted, parol testimony is admissible to show the true intent as between the original parties.” Harris, 389 P.2d at 639. The parties have not supplied the court with any Oklahoma authority, nor has the court found any on its own, holding such in the context of a guaranty.

Because Oklahoma law is undeveloped on this issue, the court examines the law of other jurisdictions for guidance.

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854 S.W.2d 464, 1993 Mo. App. LEXIS 330, 1993 WL 64627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-siding-supply-inc-v-residential-improvement-services-inc-moctapp-1993.