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National Acceptance Co. v. Exchange Nat. Bank

OCTOBER 24, 1968.

NATIONAL ACCEPTANCE COMPANY OF AMERICA, A CORPORATION, PLAINTIFF-APPELLEE,

v.

THE EXCHANGE NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 15795, THE HARDWOOD DOOR CORPORATION, SOL AUERBACH, FRED C. WRIGHT, PET WRIGHT, NATIONAL CAN CORPORATION, J.S. BATHALTER AND NANCY NOSOWSKI, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, Chancery Division; the Hon. JOHN J. LUPE, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

This action was commenced by the National Acceptance Company of America (National) to foreclose two trust deeds, each securing the same parcel of realty, which had been executed by the Hardwood Door Corporation (Hardwood). Hardwood, the principal defendant, contested the action and asserted in its answer that its indebtedness to National had been paid or released; it also counterclaimed, praying that the deeds be cancelled and the recorded liens removed as a cloud upon the title of the property. The cause was referred to a master who found the equities in National's favor and recommended that a decree of foreclosure be entered. The chancellor adopted the master's findings, held Hardwood to be indebted in the sum of $95,731.91 and ordered a foreclosure sale to satisfy the indebtedness. The defendants appeal from this decree.

National is engaged in the business of commercial financing. In February 1961, it agreed to finance Hardwood on a day-to-day basis for an indefinite period and received a bulk assignment of Hardwood's accounts receivable as security. Under this arrangement National agreed to advance Hardwood a sum not in excess of 80% of these accounts. As additional security National was given a lien on Hardwood's entire inventory and it received, from time to time, demand notes executed by Hardwood. Hardwood gave National one such note for $50,000 in June 1961, and another for $1,000 in March 1962. These notes were secured by all of Hardwood's accounts receivable and the two trust deeds on its real property which constitute the subject matter of the present litigation. Both deeds contained a provision securing National for all future advances up to $200,000.

In January of 1963, Chi-Way Millwork Corporation (Chi-Way) purchased Hardwood's assets and assumed its liabilities, including the indebtedness due National which at that time totaled $325,839.28. Of this amount $255,839.28 had arisen from money advanced on Hardwood's accounts receivable while the remainder, $70,000, was evidenced by its notes. The total indebtedness was secured by accounts receivable of $381,871.10, inventory of $339,180.01 and the two trust deeds.

Early in January 1963, Ashley Wright, the president of Hardwood, met with Nathan Paset, National's president, and informed the latter of Chi-Way's impending acquisition. He also inquired into the possibility of Chi-Way continuing with the financial arrangement then in existence between Hardwood and National. Paset told Wright that the Chi-Way acquisition and the continuation of similar financing arrangement with Chi-Way were amenable to him, but stated that Hardwood would have to stand behind Chi-Way. Paset desired a guaranty and also requested another trust deed as further protection. The guaranty was executed but the proposed trust deed was not. Although the guaranty contained a statement that it was secured by a trust deed of even date, Wright declined to execute the deed because he was of the opinion that National already had sufficient security. By the terms of the instrument signed by Wright, Hardwood guaranteed any and all indebtedness, not in excess of $200,000, which Chi-Way would thereafter owe National.

The same day that Wright executed Hardwood's guaranty, National and Chi-Way entered into a financial agreement similar to the one previously existing between National and Hardwood. This arrangement continued until March of 1965 when Chi-Way was placed in involuntary bankruptcy. The present action followed when National was unable to recover the entire amount owed in the subsequent liquidation proceedings. Of the $95,731.91 found due by the master, slightly less than half ($47,643.05) represents Chi-Way's own indebtedness to National and the balance is attributable to unpaid Hardwood notes ($40,000) and accrued interest thereon ($8,088.86).

Hardwood's position is that it is not liable for Chi-Way's indebtedness and that its notes were paid in full.

We will first consider the notes. Hardwood admits that on May 8, 1963, there was an unpaid balance of $70,000 in its notes payable account but asserts that the indebtedness was subsequently paid in full. According to National's books, the May 8th balance was reduced by $30,000 between that date and December 1963; no further reduction is noted therein and the $40,000 balance remains unpaid. No entry appears in this account from December of 1963 until 1966, when interest was charged. This latter entry was made after the present litigation was under way. The account bears the handwritten notation "Account expired See Chi-Way Millwork," but there is no indication, and there was no testimony, as to when this was added or who was responsible for doing it. Hardwood argues that the notation is significant because certain accounts receivable payments made by Chi-Way after May 8th should have been credited to Hardwood, and these more than made up for the unpaid balance in its notes payable account.

From the date of its acquisition of Hardwood, Chi-Way sent daily reports to National concerning the status of both its own and Hardwood's accounts receivable. By May 8, 1963, the Hardwood account had been reduced to $54,231.90. On or about this date, Chi-Way borrowed $250,000 from National. National deducted $54,231.90 from the loan and credited it to Hardwood's account before remitting the balance to Chi-Way. Hardwood's account was thus closed out on National's books. Thereafter Chi-Way submitted the receivable reports under its own name, irrespective of further collections that may have been made from Hardwood's outstanding debtors. National credited the payments to Chi-Way's account. There are no entries in this account which in any way substantiate Hardwood's claim that some of these payments were or should have been made in its behalf and, since its accounts receivable indebtedness had been cancelled, should have applied on its notes payable balance.

[1-3] Payment is an affirmative defense which must be pleaded by the party maintaining it (Economy Truck Sales & Service, Inc. v. Granger, 61 Ill. App.2d 111, 209 N.E.2d 1 (1965)) and proven by a preponderance of the evidence. Hish v. Shelby County, 317 Ill. App. 540, 47 N.E.2d 107 (1943). Without going into detail, we may state that we have subjected the record to careful examination and have inspected each exhibit and find proof of payment of Hardwood's notes payable indebtedness (other than the $30,000 previously mentioned) completely lacking. The master's finding and the court's decree that a balance of $40,000 is due on Hardwood's notes is fully in accord with the evidence.

Hardwood next maintains that it is not liable for Chi-Way's debts because the guaranty became inoperative on May 8, 1963, by reason of National's own action in closing Hardwood's receivable account. In support of this position it cites the conversation between Paset and Wright prior to the execution of the guaranty where, allegedly, it was understood that Hardwood would remain a guarantor only until such time as Chi-Way could attain a certain degree of financial stability on its own. Hardwood argues that by closing the account National openly signified that it considered Chi-Way to have achieved the requisite financial status and the guaranty was therefore terminated; that Hardwood cannot be held accountable for funds advanced to Chi-Way after May 8th, and that all sums advanced prior to that day have been repaid.

Closing Hardwood's account was done at Chi-Way's direction and was a convenience to both Chi-Way and National. The secretary of Hardwood held the same position with Chi-Way after the takeover. One of his responsibilities was the preparation of the daily reports concerning the accounts receivable. He testified that closing the account was merely a clerical matter. The arrangement was accomplished by National drawing a check for $54,231.90 payable to itself, crediting this to Hardwood, debiting it to Chi-Way and deducting it from Chi-Way's $250,000 loan. This bookkeeping transaction cannot be elevated to a release of Hardwood's obligation as a guarantor.

Where a contract of guaranty is unequivocal in its terms it must be interpreted according to the language used, for it is presumed that the parties meant what their language clearly imports. It is not what one of the parties may have intended, but what is shown by the contract to have been the intention of both parties. Peoria Savings, Loan & Trust Co. v. Elder, 165 Ill. 55, 45 N.E. 1083 (1897); Castle v. Powell, 261 Ill. App. 132 (1931).

Although not limited to specific duration, the guaranty contained the following language describing the manner by ...


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