{ "id": 715081, "name": "WESTERN BANK OF ALBUQUERQUE, Plaintiff-Appellee, v. FRANKLIN DEVELOPMENT CORPORATION, a Foreign Corporation, Lee Farkas, and Ruth Pollack, Defendants, and Max Pollack, Defendant-Appellant", "name_abbreviation": "Western Bank v. Franklin Development Corp.", "decision_date": "1991-01-28", "docket_number": "No. 18951", "first_page": "259", "last_page": "261", "citations": [ { "type": "official", "cite": "111 N.M. 259" }, { "type": "parallel", "cite": "804 P.2d 1078" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "649 F.Supp. 100", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7401603 ], "weight": 2, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/f-supp/649/0100-01" ] }, { "cite": "93 N.E. 940", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1911, "pin_cites": [ { "page": "943" }, { "page": "943" } ], "opinion_index": 0 }, { "cite": "200 N.Y. 346", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 4482054 ], "weight": 2, "year": 1911, "pin_cites": [ { "page": "354-55" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ny/200/0346-01" ] }, { "cite": "71 A.L.R.2d 284", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1960, "opinion_index": 0 }, { "cite": "264 Cal.Rptr. 820", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "216 Cal.App.3d 672", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4413660 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/cal-app-3d/216/0672-01" ] }, { "cite": "233 Neb. 749", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2857812 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/neb/233/0749-01" ] }, { "cite": "38 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559102 ], "weight": 2, "year": 1934, "pin_cites": [ { "page": "440" }, { "page": "1091" } ], "opinion_index": 0, "case_paths": [ "/nm/38/0436-01" ] }, { "cite": "110 N.M. 374", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716987 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nm/110/0374-01" ] }, { "cite": "78 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323703 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0489-01" ] } ], "analysis": { "cardinality": 490, "char_count": 7965, "ocr_confidence": 0.775, "pagerank": { "raw": 7.192542631360409e-08, "percentile": 0.4303287566186291 }, "sha256": "f2f3e3133a80c25dd76027a25e7fe20d6b0c8cf8f3c6040a582d9fde155f7ace", "simhash": "1:4adbfd36b904eeaa", "word_count": 1315 }, "last_updated": "2023-07-14T16:56:01.816679+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RANSOM and BACA, JJ., concur." ], "parties": [ "WESTERN BANK OF ALBUQUERQUE, Plaintiff-Appellee, v. FRANKLIN DEVELOPMENT CORPORATION, a Foreign Corporation, Lee Farkas, and Ruth Pollack, Defendants, and Max Pollack, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFRANCHINI, Justice.\nThis suit was brought to collect a debt and enforce guaranties. The trial court awarded judgment against defendants Max Pollack and Franklin Development Corporation (Franklin) in the amount of $32,-262.42 as of September 19, 1989, with a daily accrual from said date of $8.08 per day. The court also awarded costs and attorney\u2019s fees. Pollack appeals from the judgment in favor of Western Bank of Albuquerque (Western). We affirm.\nOn March 22, 1977, Citizens Bank (Citizens) extended a loan to Franklin in the original amount of $52,000.00. The loan was evidenced by a promissory note executed by Pollack, as president of the corporation, as well as Ina Farkas as secretary. On the same day, and as part of the consideration upon which Citizens issued its loan, Pollack made, executed, and delivered his personal continuing guaranty (Guaranty) of all Franklin\u2019s corporate indebtedness to Citizens to the \u201cextent of indebtedness.\u201d Co-defendant Lee Farkas also signed personal guaranties of the debt. On October 16, 1981, Citizens further loaned Franklin $25,-000.00. In October 1984 the outstanding principals of the two loans were consolidated into a renewal note for $39,609.07. As of December 21, 1984, Citizens merged with Western and Western succeeded to Citizens\u2019s assets and liabilities, which included Franklin\u2019s indebtedness and the personal continuing guaranties of such indebtedness. In January 1987 and again in January 1988, the consolidated loan was renewed and extended. On February 22, 1988, by letter to Franklin and Pollack, Western advised that the renewal note was in default as of October 25, 1987. On March 4, 1988, by letter to Franklin and Pollack, Western made demand for the renewal note to be brought current. On April 14,1988, Western made demand upon Pollack for the entire unpaid balance of the renewal note. Pollack had actual knowledge of the renewal note and he never revoked his Guaranty prior to the filing of Western\u2019s complaint.\nThis opinion will address the statute of limitations on a demand guaranty. On five separate occasions \u2014 in his motion to dismiss; in his motion for summary judgment; at the close of Western\u2019s evidence and all evidence; and in his requested findings and conclusions, Pollack asked the trial court to rule that NMSA 1978, Section 37-l-3(A) (Repl.Pamp.1990) barred Western\u2019s claim against him. Pollack also challenges the trial court\u2019s refusal to adopt several of his requested findings of fact. The trial court must make findings only with regard to ultimate facts \u2014 those necessary to determine the issues of the case. Curbello v. Vaughn, 78 N.M. 489, 432 P.2d 845 (1967); SCRA 1986, l-052(B)(1)(b). The refusal by the court to accept a requested finding is regarded on appeal as a finding against the party bearing the burden of proof on the issue at trial. Pucci Distributing Co. v. Nellos, 110 N.M. 374, 796 P.2d 595 (1990). Our review of the court\u2019s findings and conclusions indicates that adequate findings were made as to ultimate issues, and we hold that there was no error in this regard.\nThere is no dispute that the applicable statute of limitations is NMSA 1978, Section 37-l-3(A) (Repl.Pamp.1990). In defining the limitation period, the statute states in relevant part:\nThose founded upon any bond, promissory note, bill of exchange or other contract in writing, or upon any judgment of any court not of record, within six years.\nThe parties disagree, however, on when the limitation period begins to run. First, we examine the triggering of the limitations period on a general guaranty contract.\nThe general rule stated by the dissent in Cullender v. Levers, 38 N.M. 436, 440, 34 P.2d 1089, 1091 (1934), is \u201cthe statute of limitations begins to run upon a contract of guaranty the moment a right of action upon the contract accrued, not before.\u201d This proposition is strongly supported in other jurisdictions. Thus, in Production Credit Association of Midlands v. Schmer, 233 Neb. 749, 448 N.W.2d 123 (1989), the Supreme Court of Nebraska held that the guarantor\u2019s liability arises and the statute of limitations begins to run when the principal debtor defaults. Similarly, in California First Bank v. Braden, 216 Cal.App.3d 672, 264 Cal.Rptr. 820 (1989), the court held that the statute of limitations for the guarantor commences running upon the breach of the principal\u2014 when the note falls due and remains unpaid.\nPollack argues that because the Guaranty was payable \u201con demand * * * whether due or not due,\u201d it should be construed as a demand \u201cinstrument\u201d and therefore, the limitation period should run from the day it is signed. We disagree. The law is well settled with respect to a promise to render performance on demand, that a demand for performance is an express condition precedent to the duty of immediate performance. 3A A. Corbin, Corbin on Contracts \u00a7 643 (1960) [hereinafter Corbin ]. It follows from that rule that the statute of limitations does not begin to run until demand has been made. Id. A widely recognized exception to the demand rule applies to demand notes or negotiable instruments payable on demand. Id. Under the exception, running of the statute of limitations commences upon the execution or delivery of the note. See Annotation, When Statute of Limitations Begins to Run Against Note Payable on Demand, 71 A.L.R.2d 284 (1960). The exception is justified because the phrase \u201con demand\u201d is used not to make demand a condition precedent, but to show that a money debt already due and payable exists. Corbin \u00a7 643. Stated differently, \u201cwhen a promise is to pay one\u2019s own debt on demand, [no demand] is required, because the law implies a promise to pay and the express promise forms no part of the consideration and adds nothing to the obligation.\u201d First Nat\u2019l Bank of Waterloo v. Story, 200 N.Y. 346, 354-55, 93 N.E. 940, 943 (1911).\nWhere, however, the promise is to pay the debt of another \u201con demand\u201d, a different case arises and the presumption does not apply. As Corbin points out, the exception applies \u201conly to the promise of a debtor to pay his own debt. It is not applicable against a surety who promises to pay the debt of another \u2018on demand\u2019.\u201d Corbin \u00a7 643. In First National Bank of Waterloo, the New York Court of Appeals reasoned that with respect to a guarantor\u2019s promise to guarantee on demand the debt of another, \u201cthere is no precedent duty, and the obligation to pay rests wholly on the promise in the form made, and the promise is binding only in the form made.\u201d 200 N.Y. at 355, 93 N.E. at 943 (cited in Corbin \u00a7 643). The court concluded that breach of promise to pay another\u2019s debt on demand did not occur until demand was made upon the guarantor. Because no cause of action for breach arises until demand is made upon the guarantor, the statute of limitations does not commence until demand has been made.\nSimilarly in United States v. Hanson, 649 F.Supp. 100 (D.Me.1985), a guaranty provided for prompt payment of a note as and when due, whether by acceleration or otherwise. The court held that the cause of action accrued and the statute of limitations began to run when the small business association accelerated the note and demanded payment by the guarantors. Id. at 105.\nWe hold that the statute of limitations on a demand guaranty begins to run when demand is made upon the guarantor. In accordance with the foregoing, we affirm the judgment of the trial court.\nIT IS SO ORDERED.\nRANSOM and BACA, JJ., concur.", "type": "majority", "author": "FRANCHINI, Justice." } ], "attorneys": [ "Rodey, Dickason, Sloan, Akin & Robb, Henry M. Bohnhoff, Albuquerque, for defendant-appellant.", "Civerolo, Hansen & Wolf, R. Thomas Dawe, Kathleen Schaechterle, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "804 P.2d 1078\nWESTERN BANK OF ALBUQUERQUE, Plaintiff-Appellee, v. FRANKLIN DEVELOPMENT CORPORATION, a Foreign Corporation, Lee Farkas, and Ruth Pollack, Defendants, and Max Pollack, Defendant-Appellant.\nNo. 18951.\nSupreme Court of New Mexico.\nJan. 28, 1991.\nRehearing Denied Feb. 12, 1991.\nRodey, Dickason, Sloan, Akin & Robb, Henry M. Bohnhoff, Albuquerque, for defendant-appellant.\nCiverolo, Hansen & Wolf, R. Thomas Dawe, Kathleen Schaechterle, Albuquerque, for plaintiff-appellee." }, "file_name": "0259-01", "first_page_order": 291, "last_page_order": 293 }