{ "id": 8525795, "name": "EXXON CHEMICAL AMERICAS, a Division of EXXON CHEMICAL COMPANY, a Division of EXXON CORPORATION, a New Jersey Corporation v. JOHN KENNEDY", "name_abbreviation": "Exxon Chemical Americas v. Kennedy", "decision_date": "1982-10-05", "docket_number": "No. 8129SC1232", "first_page": "90", "last_page": "93", "citations": [ { "type": "official", "cite": "59 N.C. App. 90" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "222 S.E. 2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "289 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569619 ], "year": 1976, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0343-01" ] }, { "cite": "20 S.E. 173", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "pin_cites": [ { "page": "174", "parenthetical": "emphasis omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651197 ], "year": 1894, "pin_cites": [ { "page": "40", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/115/0038-01" ] }, { "cite": "2 B.R. 517", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6539242 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/br/2/0517-01" ] }, { "cite": "186 S.E. 369", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "210 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625847 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/210/0278-01" ] }, { "cite": "11 U.S.C. \u00a7 524", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "285 S.E. 2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568167, 8568205, 8568301, 8568272, 8568240 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0390-01", "/nc/304/0390-02", "/nc/304/0390-05", "/nc/304/0390-04", "/nc/304/0390-03" ] }, { "cite": "280 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "741", "parenthetical": "emphasis supplied" }, { "page": "741" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520689 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "258" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0252-01" ] } ], "analysis": { "cardinality": 350, "char_count": 7188, "ocr_confidence": 0.761, "pagerank": { "raw": 1.3947061892962717e-07, "percentile": 0.6434792144252426 }, "sha256": "5b20eaddb6f47a214d771a73cb1f18940d6d8b0baad910b2954bbace81866390", "simhash": "1:7f9cf9d8ad24a26c", "word_count": 1145 }, "last_updated": "2023-07-14T18:55:54.350150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Morris and Judge Webb concur." ], "parties": [ "EXXON CHEMICAL AMERICAS, a Division of EXXON CHEMICAL COMPANY, a Division of EXXON CORPORATION, a New Jersey Corporation v. JOHN KENNEDY" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant first contends summary judgment was improper because his answer denied plaintiff\u2019s allegation that property was sold to Plastifax in reliance on the guaranty, thus presenting an issue of fact as to \u201cwhether . . . the sale and delivery of the merchandise would have occurred without the execution of the guarantee.\u201d The guaranty agreement provided:\n[Defendant] guarantee^] to [plaintiff] the prompt payment in full when due and payable of any and all sums of money now due and which may hereafter become due to [plaintiff] for merchandise . . . sold ... by [plaintiff] to [Plastifax]. . . .\nThis instrument shall be construed as a general and continuing guaranty of payment ....\nThis being a primary obligation, [plaintiff] shall not be required to exhaust its remedies against [Plastifax] prior to the exercising of its rights and remedies against [defendant].\nThis language created a guaranty of payment. See Gillespie v. DeWitt, 53 N.C. App. 252, 280 S.E. 2d 736, disc. review denied, 304 N.C. 390, 285 S.E. 2d 832 (1981).\nA guaranty of payment is an absolute promise by the guarantor to pay a debt at maturity if it is not paid by the principal debtor. This obligation is independent of the obligation of the principal debtor, \u2018and the creditor\u2019s cause of action against the guarantor ripens immediately upon the failure of the principal debtor to pay the debt at maturity.\u2019\nGillespie, 53 N.C. App. at 258, 280 S.E. 2d at 741 (emphasis supplied).\nBecause the agreement established an absolute promise by defendant as guarantor, independent of the obligation of the principal debtor, reliance by plaintiff upon the guaranty in selling to Plastifax, the principal debtor, is immaterial to defendant\u2019s obligation to pay the account. Defendant\u2019s contention that his denial of plaintiffs allegation of reliance creates a material issue of fact, which precludes summary judgment, is thus without merit.\nDefendant alleged in his answer, as an \u201caffirmative defense,\u201d that Plastifax, the principal debtor, had been discharged in bankruptcy from the obligation which the guaranty \u201cstood behind\u201d; and that this discharge destroyed the debt which the guaranty was executed to secure, thereby terminating any liability he might have as guarantor. He contends that this alleged \u201caffirmative defense\u201d entitles him to a dismissal.\nAs noted above, the guaranty agreement by its express terms created a \u201cprimary obligation\u201d from defendant to plaintiff. It established an absolute promise to pay, independent of the obligation of the principal debtor. Further, with one exception not pertinent here, \u201cdischarge [in bankruptcy] of a debt of the debtor does not affect the liability of any other entity on . . . such debt.\u201d 11 U.S.C. \u00a7 524(e). See also Luther v. Lemons, 210 N.C. 278, 186 S.E. 369 (1936); In re Harvey Cole Co., Inc., 2 B.R. 517 (1980). The contention is clearly without merit.\nDefendant also alleged in his answer, as an \u201caffirmative defense,\u201d that the bankruptcy court ordered Plastifax, the principal debtor, as a condition of discharge, to pay plaintiff fifteen percent of its claim; and that defendant accordingly is entitled to a set off in that amount if judgment is entered against him. He appears to contend that the alleged set off presents an issue of fact which precludes summary judgment.\nDefendant neither alleges nor forecasts evidence tending to establish that fifteen percent of the claim has in fact been paid. Absent a forecast of such evidence, no issue of fact with regard to this sum is presented. Again, the agreement contained an absolute promise to pay. It created a \u201cprimary obligation\u201d in defendant as guarantor, independent of the obligation of the principal debtor. \u201cA guarantor\u2019s liability arises at the time of the default of the principal debtor on the obligation . . . which the guaranty covers.\u201d Gillespie, 53 N.C. App. at 258, 280 S.E. 2d at 741. Defendant\u2019s liability thus arose upon the principal debtor\u2019s default, which the record clearly establishes and defendant does not deny.\n\u201cUpon general principles of equity a surety, paying the debt of his principal, [is] entitled to be substituted to all the rights of the creditor . . . .\u201d Peebles v. Gay, 115 N.C. 38, 40, 20 S.E. 173, 174 (1894) (emphasis omitted). See also G.S. 26-3.1. Should defendant pay the obligation, then, he will be subrogated to plaintiff\u2019s rights in the fifteen percent of the claim which Plastifax, the principal debtor, was ordered to pay. Defendant\u2019s contention that \u201cplaintiff will very likely be overpaid,\u201d resulting in \u201cinjustice\u201d to him, is thus without foundation; and no genuine issue of fact is presented by this alleged \u201caffirmative defense.\u201d\nBecause plaintiff has carried its burden of establishing that no genuine issue as to any material fact exists, and because plaintiff is entitled to judgment as a matter of law, summary judgment in its favor was appropriate. G.S. 1A-1, Rule 56; Kidd v. Early, 289 N.C. 343, 370, 222 S.E. 2d 392, 408 (1976).\nAffirmed.\nChief Judge Morris and Judge Webb concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Ladson F. Hart for plaintiff appellee.", "Potts & Welch, by Paul B. Welch, III, for defendant appellant." ], "corrections": "", "head_matter": "EXXON CHEMICAL AMERICAS, a Division of EXXON CHEMICAL COMPANY, a Division of EXXON CORPORATION, a New Jersey Corporation v. JOHN KENNEDY\nNo. 8129SC1232\n(Filed 5 October 1982)\n1. Guaranty \u00a7 1\u2014 allegation that sale not in reliance on guaranty \u2014 immaterial as to defendant\u2019s obligation to pay\nWhere an agreement established an absolute promise by defendant as guarantor, independent of the obligation of the principal debtor, reliance by plaintiff upon the guaranty in selling to the principal debtor was immaterial to defendant\u2019s obligation to pay the account upon the failure of the principal debt- or to pay.\n2. Guaranty \u00a7 1\u2014 guaranty agreement \u2014principal debtor discharged in bankruptcy \u2014 no change in guarantor\u2019s obligation\nWhere a guaranty agreement by its express terms created a \u201cprimary obligation\u201d from defendant to plaintiff, the fact that the principal debtor had been discharged in bankruptcy from the obligation which the guarantee \u201cstood behind\u201d did not terminate any liability he might have had as guarantor.\n3. Guaranty \u00a7 2\u2014 principal debtor ordered by bankruptcy court to pay fifteen percent of ct\u00e1im \u2014 no change in obligation of guarantor\nAn allegation that a bankruptcy court ordered the principal debtor, as a condition of discharge, to pay plaintiff fifteen percent of its claim did not enti-tie defendant to a set-off in that amount since there was no evidence that fifteen percent of the claim had in fact been paid, and since defendant would be subrogated to plaintiffs rights in the fifteen percent of the claim should he pay the obligation.\nAPPEAL by defendant from Freeman, Judge. Order entered 16 July 1981 in Superior Court, Transylvania County. Heard in the Court of Appeals 3 September 1982.\nDefendant executed, in favor of plaintiff, a guaranty of payment of the account of Plastifax, Inc., with plaintiff. Plaintiff sued defendant on the guaranty, seeking recovery of a sum allegedly due it for the property sold and delivered to Plastifax.\nDefendant appeals from entry of summary judgment for plaintiff.\nLadson F. Hart for plaintiff appellee.\nPotts & Welch, by Paul B. Welch, III, for defendant appellant." }, "file_name": "0090-01", "first_page_order": 122, "last_page_order": 125 }