Charles L. Ricker v. B-W Acceptance Corporation, 349 F.2d 892, 10th Cir. (1965)
Charles L. Ricker v. B-W Acceptance Corporation, 349 F.2d 892, 10th Cir. (1965)
Charles L. Ricker v. B-W Acceptance Corporation, 349 F.2d 892, 10th Cir. (1965)
2d 892
'Undersigned further agrees to pay you all costs and expenses, including
reasonable attorney fees, incurred by you in endeavoring to obtain or enforce
payment on such instruments.
'Undersigned further guarantees the faithful performance of any and all written
agreements now existing or which may hereafter be entered into between you
and dealer and/or distributor.
10
11
12
The contract of guaranty was made in New Mexico and expressly recited that it
was to be governed by New Mexico law. Hence, in resolving the legal issues
here presented, we must apply the law of New Mexico.
13
In Ellis v. Stone, 21 N.M. 730, 158 P. 480, at page 483, L.R.A.1916F, 1228, the
court said:
14
15
Thus, it appears New Mexico has adopted the well-settled general rule of
descriptio personae.1
16
However, the court in the Stone case found the guaranty was so ambiguous it
was impossible to determine whether it was intended to bind Stone,
individually, or the bank of which he was president, and concluded that the trial
court properly considered evidence aliunde the writing.
17
The name 'Modern Furniture Co.' appears in the body of the written guaranty,
not as a contracting party or guarantor, but only in the capacity of a 'dealer
and/or distributor,' and seller of the securities guaranteed, and at no place in the
body of the guaranty is such company referred to other than in the two lastmentioned capacities.
18
19
In the last paragraph the clause, 'Undersigned waives any demand upon dealer
and/or distributor by you' clearly differentiates the 'undersigned' from the
'dealer and/or distributor' and plainly shows the italicised words refer to
different entities or parties, namely, Ricker, individually, and Modern Furniture
Company, respectively.
21
The last paragraph also provides that the guaranty 'shall not be discharged or
affected by death.' 'Death' is an appropriate term to use with respect to a natural
person. The existence of a corporation ends with the termination of the period
provided in its charter for its existence, or by its prior dissolution.
22
And, finally, the last paragraph also binds the respective 'heirs, executors,
administrators' of the parties. Those are apt terms with respect to a natural
person, but not to Modern Furniture Company, a corporation,2 and Ricker,
individually, is the only natural person referred to in the guaranty to which they
could apply.
23
The word 'undersigned' appears in the instrument eight times. The word
'undersigned' can only refer to Ricker, whose signature is affixed to the written
guaranty. At no place in the body of the instrument does the context indicate it
refers to the Modern Furniture Company, and in at least three instances the
context clearly indicates the 'undersigned' refers to Ricker as a natural person
and not in a representative capacity. Furthermore, at no place in the body of the
instrument is there any language indicating Modern Furniture Company was a
guarantor thereunder. The only basis for interpreting the guaranty as binding
the Modern Furniture Company is the addition after Ricker's signature of the
abbreviation 'Pres.'
24
Since the language of the instrument manifests a clear intent to bind Ricker,
personally, the addition of 'Pres.' following his signature is only descriptio
personae and does not render the instrument ambiguous.3
25
26
In Halliburton Company v. McPheron, 70 N.M. 403, 374 P.2d 286, the court
held that parole evidence is admissible to show that the parties to a contract,
prior to, or at the time it was made, entered into an agreement that such contract
should become operative only on the occurrence of a particular condition or
contingency, since such evidence would not vary or contradict the written
instrument, but would only show that it never matured as a valid obligation. But
the court also held that parol evidence of a conditional delivery of a written
instrument is not admissible when it contradicts the terms of a written
instrument, as where the contract by its terms excludes the possibility of a
conditional delivery.4
27
Therefore, under the law of New Mexico, parol evidence is not admissible to
establish that a written contract never came into existence, where such parol
evidence would be inconsistent with and would contradict the terms of the
written instrument.
28
Since there was nothing in the written guaranty manifesting an intent not to
bind Ricker, individually, and the guaranty contained apt words to bind him
personally, we conclude that evidence of an oral agreement that Ricker was not
to be bound personally would contradict the terms of the written guaranty and
violate the parol evidence rule.
29
It follows that Ricker's affidavit raised no material issue of fact and the trial
court properly granted summary judgment for the Acceptance Corporation.
30
Affirmed.
Williston on Contracts, Third Edition, Jaeger, Vol. 2, 299, pp. 393, 394
See Norfolk County Trust Co. v. Green, 304 Mass. 406, 24 N.E.2d 12, 13
Bissonnette v. Keyes, 319 Mass. 134, 64 N.E.2d 926, 927; Inland Rubber Corp.
v. Eskimo Kooler Corp., 337 Ill.App. 292, 85 N.E.2d 859; Gavazza v.
Plummer, 53 Wash. 14, 101 P. 370, 371, 42 L.R.A.N.S., 1; Norfolk County
Trust Co. v. Green, 304 Mass. 406, 24 N.E.2d 12, 13
See also Martin v. Cole, 104 U.S. 30, 31, 37, 38, 26 L.Ed. 647