Kenney v. Read

Full title: James P. KENNEY, Jr. and Gail E. Kenney, husband and wife, Appellants, v…

Court: Court of Appeals of Washington, Division 3

Date published: Jul 13, 2000

4 P.3d 862 (Wash. Ct. App. 2000)

Opinion

4 P.3d 862 (Wash.App. Div. 3 2000) James P. KENNEY, Jr. and Gail E. Kenney, husband and wife, Appellants, v. Melinda Boucher READ and John Doe Read, wife and husband and the marital community comprised thereof, Respondents. No. 18600-8-III. Court of Appeals of Washington, Division 3. July 13, 2000

          Prior report: 100 Wash.App. 467, 997 P.2d 455.

         ORDER DENYING RESPONDENT'S MOTION FOR RECONSIDERATION AND ORDER AMENDING OPINION

          KURTZ, Chief Judge.

         THE COURT has considered respondents' motion for reconsideration and is of the opinion the respondents' motion should be denied and further, that the opinion be amended for clarity.

         NOW THEREFORE,

          IT IS HEREBY ORDERED that respondents' motion for reconsideration is denied and the opinion shall be amended as follows: On page 9, line 10 [column 1, line 16, page 460 of 997 P.2d] that says " 1973)); see also 72 C.J.S. Principal and Surety § 82 (1962) (intent or object of" -1962 should be replaced with 1987.

         IT IS FURTHER ORDERED that the opinion shall be amended as follows: On page 10, after line 2, [column 1, line 8 from bottom of page 460 of 997 P.2d] the following new paragraph should be inserted:

An initial matter is whether Ms. Read knew of the suretyship agreement. " In order that the surety may occupy that position and avail himself of the rights, defenses, and remedies of a surety as against the creditor, the fact of the suretyship agreement must be known to the creditor; otherwise, the surety may be held liable as principal obligor." 72 C.J.S. Principal and Surety § 27 (1987). Thus, " the existing rights of the creditor cannot be altered to include new duties to the alleged surety unless the creditor has knowledge of the event which creates the suretyship." Hemenway v. Miller, 116 Wash.2d 725, 729, 807 P.2d 863 (1991).

Here, Mr. Kenney provided the letter of credit in consideration of promises and inducements by representatives of Rook. Based on Rook's representations, Mr. Kenney believed that Ms. Read could only draw down the letter of credit if Rook did not make a monthly lease payment. Ms. Read did not give Mr. Kenney any inducements to provide the letter of credit, and Mr. Kenney never directly communicated with her or her husband. The letter of credit itself was not in Mr. Kenney's name, but was in the account name of Rook. Thus, an issue of fact remains as to whether Ms. Read knew of the suretyship agreement.

         IT IS FURTHER ORDERED that the opinion should be amended as follows: The first paragraph on page 10 [page 460 of 997 P.2d] commencing with " Ms. Read contends ..." the following sentence should be inserted as the start of that paragraph:

         Even assuming that Ms. Read knew, factual questions remain.