Andrus v. Zion's First National Bank

SHEPARD, Chief Justice. This is an appeal from a judgment in favor of plaintiffs-respondents, John and Margie Andrus, holding that a mortgage on their farm was null and void. The judgment also denied defendant-appellant Zion’s First National Bank’s counterclaim and that of defendant-appellant Carl Reed for damages to his reputation. We affirm. Andruses own a 1924-acre farm near Lava Hot Springs, Idaho, upon which they operated a Grade C dairy operation. Muir-brook Farms, Inc., owned and operated a [725] Grade A dairy operation at West Warren, Utah. In 1974 Muirbrook was in financial distress and had indebtedness of approximately $600,000 owed largely to Zion’s First National Bank or companies who share with Zion’s a common parent holding company. In the spring of 1974, the Andruses joined a part of their operation with that of Muir-brook and moved stock and feed to Muir-brook’s operation in Utah. That partial merger was the result of an oral informal joint venture agreement. After Zion’s First National had refused Muirbrook’s repeated requests for an additional loan needed by Muirbrook for operating expenses, Muirbrook then requested Andrus to pledge the Andrus farm to obtain the additional loan Muirbrook needed for refinancing from Zion’s First National. Carl Reed, Zion’s loan officer, visited the Andrus farm in October of 1974, examined that property and the personal assets and advised Andrus that he had a sound operation. On November 21,1974, Andrus, Muir-brook and Reed met in Pocatello, Idaho, at which time Reed agreed that Zion would make a $250,000 FHA guaranteed loan to Muirbrook which would require that the Andrus farm, without personal property, be used as collateral. The bank would first require that Andrus and Muirbrook formalize their joint venture agreement. Andrus was also informed that a “wrap around” arrangement would be made in which a large part of the loan proceeds would be used to provide additional security for indebtedness of approximately $600,000 that Muirbrook at that time already owed to the bank. At that same meeting Reed also stated that if refinancing was not obtained, foreclosure on the Muirbrook property would be initiated the following day. Andrus also gained the impression that such foreclosure would include his farm. On that same date arrangements were made for title insurance, appraisals, the note and trust deed, the joint venture agreement and a letter indicating Andruses’ agreement to place a second mortgage on their farm. Since Reed had brought a trust deed form instead of an appropriate mortgage form, a mortgage was not drawn and signed until the following day, November 22, 1974. Zion’s First National was aware that an FHA guaranteed loan was not eligible for the refinancing of present indebtedness unless the farming operation was to continue for an indefinite time and Reed indicated confidence in the future operations of the joint venture. Nevertheless, 45 days later the bank initiated foreclosure proceedings against Muirbrook. All of Muirbrook’s assets were seized and foreclosure thereon was completed in 1975. In that process the bank also seized control of all of the Andrus property including cattle and feed. It was the intention of Muirbrook and Andrus that the proceeds of the $250,000 loan would be used to refinance $200,000 of the indebtedness of Muirbrook which would leave $30,000 for operational expenses and $20,000 for Andrus. From the record it is questionable whether the $30,000 for the joint venture operation was received but it is clear that Andrus did not receive the $20,000. The bank placed the loan proceeds in a trust in the bank to be dispersed by the Andrus and Muirbrook attorney under the control of the bank. By some process not clear in the record, the bank assumed and seized control of the accounts receivable of the joint venture. The actions of the bank in establishing the trust account for the loan proceeds and in seizing control of the accounts receivable were not anticipated by Andrus or Muirbrook and came as a surprise to both of them. It is unquestioned that such procedures seriously hampered and aggravated the cash flow problems of the joint venture. As a result of the above set out facts which were substantially found by the trial court, the court held that the Andruses had acted as a gratuitous surety in placing the second mortgage on their farm. It also held that both the bank and Reed had a duty to disclose the details of the loan program and the material facts affecting the surety’s risk and that they failed to fulfill those duties. The trial court further held that the bank had engaged in misleading [726] conduct which was “inequitable and lacking in fair dealing.” The court denied those damages sought by the Andruses for loss of profit on the basis that they had failed to meet their burden of proof. Thus, the Andruses were only awarded their court costs, including the $7,500 for attorney’s fees. As aforesaid, the court also denied the counterclaims of both Zion’s First National and Reed. We deem the record to support the trial court’s characterization of the relationship between the parties as a suretyship. The Andruses may not have intended to act as a gratuitous surety in the strict sense of the word when they entered into the agreement since they did expect to receive some benefit in the form of cash for operating expenses. Nevertheless the finding of the trial court, which is supported by the evidence, indicates that no cash for operating expenses was received. Here, the Andruses bargained for an amount not to exceed $50,000 in cash (which they did not receive) in return for mortgaging their property to guarantee the payment of approximately $600,000 of the then presently existing indebtedness of Muirbrook to the bank and its related companies. There is no required form for a surety contract and it is not necessary that the mortgagors be labeled “surety” on the face of the contract. United States v. Ferguson, 409 F.Supp. 393 (S.D.Ga.1975) aff’d, 529 F.2d 999 (1976). The requirement that a surety receive no benefit whatsoever in order to be characterized as a surety is no longer the rule. A. Stearns, The Law of Suretyship §§ 1.2, 2.1, at 2, 8-9 (5th ed. J. Elder 1951). Here, the ultimate effect of the transaction was that the Andruses mortgaged their property to secure the debts of another and hence, they are held to be a surety. See SEC v. H. L. Rodger & Bro., 444 F.2d 1077 (1971); Gellis v. Gellis & Co., 322 A.2d 287 (1974), aff’d, 339 A.2d 64 (Del.1975); Mallis v. Faraclas, 200 A.2d 676 (Md.1964); Eichler v. Hillside Nat’l Bank, 176 A.2d 508 (N.J. 1961); Bank of New York, Albany v. Hirschfeld, 350 N.Y.S.2d 943 (1973); Champlain Valley Fed. Sav. & Loan Ass’n v. Ladue, 316 N.Y.S.2d 19 (1970); 72 C.J.S. Principal and Surety § 41 (1951). See also I.C. § 28-1-201. The decision of the trial court may be upheld on either of two theories. First the trial court found that the Andruses did not receive that which they had been promised in return for their execution of the mortgage-suretyship agreement, i. e., the money for operating expenses. “Where the consideration for the surety’s obligation fails, he is not liable thereon.” 72 C.J.S. Principal and Surety § 70 (1951). See also A. Stearns, supra, § 7.4 at 204. Secondly, the trial court held that since the Andruses were acting as a surety the bank had a duty of disclosure which it failed to meet. See Mohasco Indus., Inc. v. Giffen Indus., 335 F.Supp. 493 (S.D.N.Y.1971). Both parties cite and rely on Sumitomo Bank of Calif, v. Iwasaki, 70 Cal.2d 81, 73 Cal.Rptr. 564, 447 P.2d 956 (1968), which states: “In all suretyship relations, the creditor owes to the surety a duty of continuous good faith and fair dealing. * * * “Thus the creditor must not misrepresent or conceal facts so as to induce or permit the surety to enter or continue in the relationship in reliance on a false impression as to the nature of the risk.” In the instant case the trial court held that the bank had obtained the mortgage from the Andruses “without adequate disclosures and engag[ed] in misleading conduct concerning the transaction [which was] were inequitable and lacking in fair dealing.” The court also held that the facts were material and affected the risk of the surety. Those holdings and conclusions of the court are adequately supported by the findings of fact which in turn are supported by the evidence, albeit conflicting. It is sufficient to indicate that those findings relate to the disbursement of the $250,000 loan funds under the control of the bank, the assumption by the bank of control of the accounts receivable and the failure of the bank to furnish the agreed upon operating funds, although such were continually promised by Reed, the loan officer of the [727] bank. The trial court noted additional facts demonstrating the lack of “fair play” on the part of the bank although those facts were not necessary or material to its decision, i. e., that after default of Muirbrook the bank foreclosed on all assets including those of the Andruses without notice and without accounting for the proceeds or application of any surplus to the Andrus obligation. The trial court applied and utilized correct principles of law relating to the duty of a creditor to disclose to a surety facts which would affect the risk assumed. See United Bonding Ins. Co. v. Donaldson Eng’r, Inc., 222 So.2d 447, 448 (Fla.Ct.App.1969); citing 72 C.J.S. Principal and Surety § 77 (1951) ( — Concealment); State Bank of Albany v. McDonnell, 40 A.D.2d 905, 337 N.Y.S.2d 697 (1972). See also St. Charles Nat’l Bank v. Ford, 349 N.E.2d 430 (Ill.App.Ct.1976); Harris & Harris Constr. Co. v. Crain & Denbo, Inc., 123 S.E.2d 590 (N.C.1962); United States v. Ohio Cas. Co., 399 F.2d 387, 389, cert. denied, 393 U.S. 1064, 89 S.Ct. 719, 21 L.Ed.2d 708 (1968). The judgment of the trial court is affirmed. The trial court allowed costs to plaintiff which included $7,500 attorney’s fee. That award of costs is likewise affirmed. Costs on appeal allowed to respondents; however, no attorney’s fee on appeal is allowed. McFADDEN, DONALDSON and BISTLINE, JJ., concur.