Opinion
No. 75-1938.
February 18, 1977.
Appeal from the Circuit Court, Palm Beach County, T.P. Poulton, J.
John B. Powell, IV, and Louis R. McBane of O'Connell Cooper, West Palm Beach, for appellants.
F. Martin Perry of Levy, Plisco, Perry, Reiter Shapiro, Palm Beach, for appellees.
The trial court entered a Summary Judgment in favor of the Plaintiffs on a promissory note. We reverse.
One of the Plaintiffs, Frank J. DeCesare, (apparently one of the corporation officers, though not so designated), signed a contract as did one of the Defendants, Paulette N. Lee, for the sale of real property. The contract provided for a purchase money mortgage secured by the note sued upon. The contract included the following — "Esculpatory (sic) Clause: The property shall be the sale as set for reclaim for deposit and in no event shall the maker be personally liable for this indebtedness".
The Defendants contend that through an oversite the "Esculpatory Clause" was deleted from the note. They further contend that all parties to the transaction intended that the makers of the note would not be personally liable, (note — the clause uses the word "maker" not "buyer" or "purchaser", the words used elsewhere in the contract to designate this party).
The Plaintiffs argue that this clause applied to another promissory note, not involved in this law suit.
The trial judge sitting as the trier of facts in this non jury case may well decide against these Defendants, but when hearing a Motion for Summary Judgment must not weigh the evidence.
Reversed and Remanded.
MAGER, C.J., and CROSS, J., concur.