Westinghouse Credit Corp. v. Hydroswift Corp. ( 1974 )

HENRIOD, Justice

(dissenting):

I respectfully dissent. I do so on what the main opinion says factually was the case, — plus one or two other facts, not controverted, hot mentioned in the opinion,— but which in my opinion are dispositive of this case antithetically. These very important, uncontradicted facts are as follows:

I. The guaranty agreement on which Westinghouse solely relies, specifically precludes any legal action based thereon with respect to the matter of a guarantor-guarantee relationship, when it says clearly to Westinghouse that “The signature of each corporate guarantor must be supported by a certified copy of a board resolution or bylaw naming the officer or officers au-thorised to sign.” This was blackbordered, obviously for emphasis. There is no evidence whatever of any compliance with this clear condition precedent.

II. The boats, subject of this litigation and the “flooring” plan mentioned in the main opinion, were sold to the plaintiff, Westinghouse, so that it was Westinghouse’s duty, and its alone, being the owner, to repossess, — which it peremptorily refused to do, — although requested so to do by Hydroswift.

The above undisputed evidence cannot be ignored by a trial court even under the appellate safety-valve that the trier of the facts has a better opportunity to observe the demeanor of the witnesses, etc.