Whalen v. Devlin Lumber & Supply Corp.

Marbury, J., delivered the opinion of the Court. On August 1, 1962, the appellee, Devlin Lumber & Supply Corporation (Devlin) entered into a written contract with Grandin Construction Company, Inc. (Grandin) for the extension of credit for lumber materials supplied to Grandin. On that date, Raymond J. Whalen and Regina D. Whalen, appellants, agreed jointly and individually to guarantee the payment of any charges that were due from Grandin. After default by Gran-din, Devlin brought suit in the Circuit Court for Montgomery County against Grandin as primary debtor and against the appellants as guarantors on the open account.

Summary judgment was rendered against Grandin for the amount claimed. Devlin also filed a motion for summary judgment against the Whalens. The latter filed general issue pleas and a plea asserting that Devlin had waived any rights it may have had against the Whalens by virtue of the alleged guaranty agreement. They also filed affidavits in opposition to the appellee’s motion for summary judgment, denying liability on the guaranty contract on the grounds of estoppel and waiver by Devlin.

The lower court ruled in favor of Devlin on the basis that the appellants’ affidavits did not sufficiently show a genuine issue of fact or a genuine defense to the claim, and that Devlin was entitled to judgment as a matter of law. The Whalens have appealed from the judgment entered against them. ⁵³ In reaching its decision the lower court relied upon Maryland Rule 610 d 1 which provides in pertinent part: “The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In their affidavits in opposition to summary judgment, the appellants asserted defenses of estoppel and waiver in that they alleged all checks payable to Grandin were payable to the order of Grandin and appellee as joint payees; that the appellee had control over an amount sufficient to pay the account; that appellee had a duty and obligation to protect itself and the individual guarantors (appellants) ; that the appellee failed to apply these monies to the payment of the debt; and that as a result appellee is estopped from asserting its claim against the guarantors on their contract. We hold that these affidavits raised a genuine dispute as to a material fact and that Devlin was not entitled to judgment as a matter of law. Generally, any act or omission on the part of the creditor or beneficiary of the guaranty in