(concurring in the result):
The complaint in this case under its First Claim, Count One, alleges and seeks recovery upon the promissory note of March 14, 1973; and under Count Two, alleges the signing of the guaranty by the defendants and seeks recovery therefor. It appears to be without dispute that the bank originally loaned $100,000 in reliance on that guaranty. However, it also appears without dispute that the defendants revoked the guarantee, as permitted by its terms, in October of 1972; and thus prior to the execution of the note upon which this lawsuit is based.
On the defendants’ Motions for Summary Judgment the court made “findings.” It is realized that the court does not properly make findings on a Motion for Summary Judgment. But it is assumed that the court must have meant that its recitals appeared to be the undisputed facts. The “findings” included this:
6. That the renewal of the obligation by the new notes subsequent to the date of revocation of the Guaranty constituted new contracts and new obligations. [Emphasis added.]
That, of course, is but a statement of a conclusion of law.
I assume it to be a fact that the $100,000 which was advanced by the bank has never been repaid. If so, the “finding” number 6 would be justified only if it appeared that there was an agreement between the lender (First Security) and the borrower (Inter-west Film) to the effect that the prior note was satisfied and a new obligation entered into.
The burden of the defendants’ argument as stated in Point 1 of their brief is that “the lower court correctly held that the renewal note signed subsequent to the revocation of the guaranty and without the consent of or notice to the guarantors (defendants) constituted a new obligation.” In support thereof, they stress the language of the guaranty that it was only to “ . remain in full force and effect until such time as the Bank shall receive notice in writing of the revocation . . . .” They cite authorities to the effect that as guarantors they are entitled to strict construction of the law and of the contract against the Bank (who furnished the Guaranty form) and in defendants’ favor.1 They argue that because of that principle, a guarantor is at least entitled to notice of any substantial change that extends his risk or otherwise increases his burden under the guaranty.2 And they insist that the Bank did so without notice to them and without their consent.
To be weighed against the foregoing is the argument of the plaintiff which stresses the other provision of the guaranty that it applies to “all renewals, extensions of time, or modifications . . . ” of any debt owed the bank prior to revocation of the guaranty. It should be noted that if there is any inconsistency in the provisions thus relied on by the disputants, the defendants are entitled to the benefit of the one which favors them and allows them to rid themselves of the personal guaranty by revocation at any time.
In the deposition of Mr. George Caine, Vice President of the Bank, there is some talk about reliance or non-reliance on the personal guaranties of Defendants in further extensions of credit, and also of oral statements concerning a six-month limita*180tion on the personal guaranty (which I note that I do not regard as proof of the fact).
Consequent to what has been said above, it is my opinion that there is an issue of fact as to whether the subsequent notes given in connection with this matter are in fact but renewals of the same obligation, as the plaintiff contends, or whether there was in fact a new agreement in lieu thereof as contended by the defendants, and as determined by the trial court. It is, therefore, my opinion that the summary judgment for the defendants was improper and that the case should be remanded for further proceedings.
. Pergament v. Herrick Credit Corp., 200 N.Y.S.2d 535 (Sup.1960).
. In re Ore Ida Potato Products v. United Pacific Insurance Co., 87 Idaho 185, 392 P.2d 191 (1964); 74 A.L.R.2d 734 (1960).