SECURITY BANK N A v MUDD
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No. 84-295 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 SECURITY BANK, N.A., Plaintiff and Appellant, -vsJOSEPH E. MUDD, Defendant and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Charles Luedke, Judge presiding, COUNSEL OF RECORD: For Appellant: Herndon, Harper & Munro; James Edmiston argued, Billings, Montana For Respondent : Joseph E. Mudd argued, Bridger, Montana Submitted: January 21, 1985 Decided: March 14, 1985 Filed: Mr. Justice Fra.nk B. Morrison, Jr. delivered the Opinion of the Court. Security Bank, N.A. (Bank) brought an action in the District Court of the Thirteenth Judicial District, County of Yellowstone, to recover under a contract of guaranty executed by defendant, Joseph E. Mudd. Both Mudd and George Balback, the loan officer involved, were deposed. The case was then submitted to the court upon the depositions, the court file and the attorneys' briefs. The court held that Bank failed to notify Mudd of changes in the underlying note which materially increased defendant's risk under the guaranty, dismissed Bank's complaint and awarded Mudd costs and reasonable attorney's fees. The District Court stayed its jud.gment at Rank's request, pending this appeal. Prior to the summer of 1979, Coral Bemis owned and operated an employment agency in Kalispell, Montana. That summer, with Joseph Mudd acting as her attorney, Bemis sold the Kalispell business. She accepted a $25,000 contract receivable, due in one year, September 25, 1980. Wishing to open an employment agency in Billings, Montana, Bemis sought financinq in that city, to no avail. Mudd then offered to contact an acquaintance of his, the Vice President. of Security Bank, on Bemis' behalf. That contact enabled Bemis to obtain an interview with George Balback, a loan officer at Rank. contacted Mudd receivable. to Following that interview, Balback inquire about Bemis' $25,000 contract Balback apparently requested Mudd to guarantee a note for Bemis and Mudd agreed. Bank subsequently issued a note to Bemis for $16,000, with a 1 3 % percent interest rate. The note was secured by the $25,000 contract receivable and stock certificates of the corporation, and guaranteed by Mudd . At either Mudd's or Bank's request (both sa-y it was upon the request of the other), Bemis was not told Mudd guaranteed her note. The contract of guaranty signed. by Mudd was continuing and unconditional. It stated in relevant part: "FOR VALUE RECEIVED and in consideration of credit now or hereafter extended to Coral L. Bemis, undersigned guarantees: ... ... " (1) The payment to Bank upon demand of all sums of money now or hereafter owed by Debtor to Rank, together with interest thereon; " (2) The payment of all costs and expenses, including attorneys' fees incurred by Rank in connection with the collection of the indebtedness of Debtor. "This Guaranty shall be a continuing one and undersigned hereby expressly waives presentment, demand, protest, and notice of protest on any and a.11 forms of such indebtedness, and also, notice of acceptance of this Guaranty, acceptance on the part of said Bank being conclusively presu.med by its request for this Guaranty and receipt of the same by it. Undersigned consents to the extension of the time of payment of any obligation guaranteed by this Guaranty without notice to undersigned." Late in 1979, Mudd helped Bemis and Veronica Sherman incorporate as C.L. Bemis, Inc. Mudd. agreed to become the silent owner of 2 percent of the business, with Bemis and Sherman each owning 49 percent. In January 1980, Bemis received an early payment of $20,'7OO as full satisfaction of the $25,000 Kalispell contract. Ralback applied $13,500 to the $l6,OOO note and released the remaining money to Bemis for use in her new employment agency. action. Bemis did not inform Mudd of this trans- Balback cannot recall whether he did or not. In fact, Balback ca.n.notrecall the specifics of any conversation he might have had with Mudd, but is certain he kept Mudd. informed of Bemis ' subsequent financial difficulties. Mudd contends he made several inquiries to Bank about the note and was told that a large portion of it had been paid in January 1980. further He c o n t e n d s Bank n e v e r t o l d him o f Bemi.sl financial dif f icul t i e s . O F e b r u a r y 11, 1980, R e m i s l o r i g i n a l n o t e had a b a l a n c e n o f $2,500, p l u s a c c r u e d i n t e r e s t . i n c r e a s e d by $2,000 O t h a t d a t e , t h e n o t e was n and changed by Bank and B e m i s t o a re- volving note, with i n t e r e s t t o accrue a t 1 7 percent. O March 2 1 , n 1980, Bemis e x e c u t e d a n o t h e r n o t e i n t h e Inc., d / b / a B r y a n t Bureau, i n t h e amount name o f C . L . Bemis, of T h i s c o r p o r a t e n o t e was g u a r a n t e e d by V e r o n i c a $5,000. and David Sherman. The g u a r a n t o r s were s u b s e q u e n t l y r e l e a s e d when Veronica p a i d t h e m a j o r i t y o f t h e n o t e and t r a n s f e r r e d t h e remaining $450 d e b t t o B e m i s i n d i v i d u a l l y . On September 16, 1980, t h e n o t e , which i s t h e s u b j e c t o f t h i s appeal-, was e x e c u t e d by Bemis i n t h e amount o f $5,250. T h i s n o t e s t a t e s t h a t t h e money was advanced f o r renewal o f Note 13384C, No. the original $16,000 note. The $5,250 consists of: -- the -- $2,500 (1) an a d d i t i o n a l advance made on t h e o r i g i - remaining balance on the original $16,000 n o t e ; $2,000 (2) n a l $16,000 n o t e ; $300 -- accrued $450 (3) -- r o l l e d from t h e c o r p o r a t i o n ' s n o t e . interest on the original $16,000 n o t e ; and (4) Bemis payment defaulted from Mudd. judgment on However, Bemis recover. on t h e the $5,250 note and Rank demanded Upon Muddts r e q u e s t , note then against filed Bemis on Bank April obtained 8, a 1981. f o r b a n k r u p t c y and. Bank d i d n o t Defendant t h e r e a f t e r r e f u s e d t o honor t h e g u a r a n t y and t h i s a c t i o n was b r o u g h t June 29, 1981. In i t s appeal of t h e dismissal of Mudd, Bank r a i s e s t h e f o l l o w i n g i s s u e s : its action against Whether the District Court erred in holding Bank 1. was under a duty to notify the guarantor that (a) it had received payment upon a contract receivable, which payment possibly may have been sufficient to pay off a line of credit; and (b) it was not using that security to ful.ly satisfy the primary oblj.ga.tion. 2. Whether under a contract of unconditional and continuing guaranty, a partial release of collateral by Bank was sufficient under Montana law to exonerate the guarantor from his obligation to pay the debt of the primary debtor. Our resolution of the first issue renders issue number .two moot. The District Court, relying on Sumitomo Bank of California v. Iwasaki (Cal. 1968), 447 P.2d 956, held Bank had a duty to notify Mudd, as guarantor of the note, when it determined not to totally discharge Bemis' note upon receipt of the collateral and when it extended further credit to Bemis. Sumitomo involved numerous extensions of credit under the original note. The California Court held that each extension of credit created a new suretyship contract. P.2d at 964. Sumitomo, 447 The Court then applied a test from the Restate- ment - -of Security for when ' creditor has a duty, at the outset of an obligation, to d.isclose facts it knows about the debtor to the surety to determine whether the surety should be released. 1. The elements of that test are: The creditor has reason to believe those facts materially increase the risk beyond that which the surety intends to assume; 2. The creditor has reason to believe the facts are unknown to the surety; and 3. The creditor has a reasonable opportunity to cornmu- nicate the facts to the surety. . S 124 (1) (1941) &statement of - Security We approve the District Court's use of the Restatement of - Security's test in this instance as release of the collateral. without full payment of the note similarly created a new suretyship contract. Further, we find the District Court did not abuse its discretion in determining, under the facts of this situation, that all three elements of the test were met. There is sufficient credible evidence to support the trial judge's findings regarding the second and third elements of the test. Regarding element number two, it is undisputed that Bank knew Bemis did not know Mudd had guaranteed her loan. There- fore, it was reasonable for the trial judge to find that creditor (Bank) had reason to believe that surety/guarantor (Mudd) did not know the collateral had not been used to totally discharge the note. There is no evidence Rank so informed Mudd and there was no reason for Bemis to tell Mudd of the partial release. With respect to the third element, Fudd repeatedly stated in his deposition that despite numerous inquiries concerning the note, he was never told of the note's true status. Mudd remembered the details of the discussions. In contrast, Balback's statements in his deposition regarding his discussions with Mudd over the use of the coll-ateral are rather vague and uncertain. support the trial opportunities to There is sufficient evidence to judge's finding that despite numerous do so, creditor (Bank) had never told surety/guarantor (Mudd) the true facts. The first element of the test is not so easily resolved. No changes to the note resulted in an obligation greater than the $16,000 Nudd originally agreed to assume. Moreover, the guaranty was both unconditional and continuing. However, Pludd knew that the $25,000 contract receivable was going to be used guarantor. as collateral when he signed. Bemis' note as The trial judge did not abuse his discretion in finding that the contract receivable was inextricably linked with the guaranty and that Mudd had the right to assume that Bank would use the money from that contra.ct receivable to satisfy the note, or notify him otherwise. The Bank's failure to do so materially increased Mudd's risk beyond that which he intended to assume. The District Court therefore correctly held that Bank was under a duty to notify Mudd that it did not totally discharge Bemis' note upon receipt of the collateral. When Bank failed to so notify Mudd, he was released a.s guarantor of Eemis' note. The decision of the Distri rt is affirmed. c We concur: hie£ Justice /
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