84 Lumber Company v. R. Bryan Smith - Concurring ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 1, 2010 Session
84 LUMBER COMPANY v. BRYAN SMITH, ET AL.
Appeal from the Circuit Court for Washington County
No. 27548 Jean A. Stanley, Judge
No. E2010-00292-COA-R3-CV - FILED OCTOBER 28, 2010
CHARLES D. SUSANO , JR., concurring in part and dissenting in part.
I agree with so much of the majority opinion as affirms the trial court’s judgment against
Allstate Building System, LLC. I cannot agree, however, with the majority’s decision (1) to reverse
the judgment in favor of 84 Lumber Company against R. Bryan Smith and (2) to grant summary
judgment to Mr. Smith.
While the majority cites relevant authority for its holding that Mr. Smith is not liable on the
commercial credit application (“the application”) at issue in this case, I cannot get beyond the all-
capitals language in the application as quoted in the majority opinion. That language, in pertinent
part, provides as follows:
I HEREBY CERTIFY THAT . . . I DO UNCONDITIONALLY AND
IRREVOCABLY PERSONALLY GUARANTEE THIS CREDIT
ACCOUNT AND PAYMENT OF ANY AND ALL AMOUNTS
DUE BY THE ABOVE BUSINESS. . . .
(Capitalization in original.) The majority acknowledges that the “ABOVE BUSINESS” is the
customer of 84 Lumber, i.e., Allstate. Actually, the language “ABOVE BUSINESS” appears twice
in the all-capitals language, only a part of which is quoted in this separate opinion. Query, if the
“ABOVE BUSINESS” is Allstate, who, pray tell, is the “I” who is doing the guaranteeing? Can it
be anyone other than the person who signed his name under this language?
Mr. Smith took pen in hand and signed his name below the subject language. It is true that
he wrote out the word “President” after his signature, but this was obviously done to show his agency
relationship with the customer – the “ABOVE BUSINESS” – to whom credit was going to be
granted.
I do not understand why Mr. Smith’s signature is not effective both to bind the “ABOVE
BUSINESS” and to bind him – the “I” – “PERSONALLY” on the account. He is assumed by law
to have read that to which he has signed his name. See Giles v. Allstate Insurance Company, 871
S.W.2 154, 157 (Tenn. Ct. App. 1993). In my judgment, when he signed the application, he had to
have known that the “I” doing the personal guaranteeing was him.
I concur in part and respectfully dissent in part.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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