358 F.2d 745: Horlbeck Products Corp., Plaintiff-appellee, v. Madison Industries, Inc., Andscott, Inc., Defendants-appellants
United States Court of Appeals Sixth Circuit. - 358 F.2d 745
March 30, 1966
John W. Potter and Howard L. Ness, Toledo, Ohio, for Scott, Inc.
Marcus L. Friedman, Toledo, Ohio, for Madison Industries, Inc.
Thomas L. Dalrymple, Toledo, Ohio, for appellee, Richard S. Baker, Toledo, Ohio, on the brief, McIntyre & Henry, Attleboro, Mass., of counsel.
Before PHILLIPS and CELEBREZZE, Circuit Judges, and McALLISTER, Senior Circuit Judge.
This is an appeal from a judgment for breach of contract entered by the district court against appellants in the amount of $54,374.19, plus interest. Jurisdiction is based upon diversity of citizenship.
The parties executed a written contract under date of July 1, 1962, under which appellant Scott, Inc. agreed to purchase electric food warming trays manufactured by appellee and to serve as an exclusive sales organization for the promotion of this product. Appellant Madison Industries, Inc. guaranteed payment of all purchases.
District Judge Frank L. Kloeb, sitting without a jury, heard the evidence and resolved the issues of fact against appellants, including conflicting and confusing testimony as to the amount of the award. His opinion, reported at 252 F.Supp. 90 (N.D.Ohio) contains a full recitation of the facts, quotes relevant parts of the contract, and discusses in detail each of the contentions presented by appellants on this appeal. We have read the entire transcript and conclude that the findings of fact by the district court are not "clearly erroneous," Rule 52(a), Federal Rules of Civil Procedure, but to the contrary are supported by substantial evidence.
Madison Industries, Inc. asserts that the district court erred in rendering judgment against it as guarantor.
The written guaranty endorsed upon the contract is as follows:
"In consideration of the execution of the above Agreement, in which Madison Industries, Inc. has an interest, Madison Industries, Inc. will guarantee Scott purchases from Horlbeck, and any payment due Horlbeck on said purchases by Scott."
We agree with the construction placed upon this guaranty by the district court and that the guarantor is liable for the entire amount of the judgment.