(dissenting):
Respectfully, I dissent. This is an appeal from a Summary Judgment bottomed on pleadings and the discovery process, saying two guarantors, Mason and McMullin, were relieved from their obligations under an agreement dated November 4, 1971, to guaranty up to $100,000 in loans to defendant, Interwest Film, by First Security Bank, no party here, — but that one way or another, avoided this litigation with an assignment of its lender’s interest in the promissory note involved here, to Marking Systems, Inc., whose corporate business is not reflected in the complaint. I believe the trial court should be affirmed.
The briefs discuss some “renewal” and “extension” of promissory notes at some length. The subject note is neither. It is a definite, dated demand note and there are no facts whatever in the pleadings, save as reflected in conclusions, indicating other than that the payee relies solely on a note dated March 14, 1973.1
The parties stipulated that a written Guaranty of November 4, 1971, was revoked, before the March 14,1973, note came into being, and nowhere in plaintiffs complaint is it averred that the obligation created on March 14, 1973, was a “renewal” or “extension” of anything.
It states an obligation, effective as of March 14, 1973. It makes no reference whatever to a “renewal” note and claims no other parentage to any pre-existing obligation, for any part or parcel of $100,000. Had the plaintiff pleaded that prior to the written revocation there was due an indebtedness, say, for $5,000, then, by the plain wording of the Guaranty, the signers may have been obligated for $5,000, not $100,000 as alleged was due on March 14, 1973. For aught this record shows, nothing was due by way of liability before March 14, 1973. There appears to be an emasculation or circumvention of the clear terms giving a right to terminate the Guaranty for anything in addition after the date of the revocation, or else a failure to state a cause of action pre-dating March 14, 1973. By adding a so-called second cause that talks about a “guaranty” and talks about a “renewal,” there is nothing by way of affidavit, proffering of Exhibits showing an unpaid obligation, and no statement of account showing what was due on the day of revocation, —which is the basic document here. The plaintiff not only fails to show by any kind of discovery that the obligation dated March 14, 1973, was a renewal of anything, —-nor that it was anything other than what it said it was. If the hypothetics this author has indulged above happened to be true, — or there existed some other figures of similar import, — the transfer of the note now sued upon to a bona fide purchaser for value, without notice, — would be something akin to a gross injustice and smacking of fraud.
An appeal is made to the reader to consider plain terms lifted from the Guaranty, — which is not pleaded as the basis for iiability here.2 It says that the revocation clause, which the plaintiff conveniently shuns as a plague with respect to defense, but espouses with all the affection of a June bridge to establish liability, “shall not *181otherwise release any of the guarantors from liability prior to the receipt of such notice by the bank . . .,” but that guarantors were liable only “until such time as the bank shall receive notice in writing of the revocation of same." Such notice is conceded before March 14, 1973.
It seems basic that the plaintiff here has chosen its weapon and should rely on its sharpness or dullness for success or failure. It seems to have elected to gore, not an ox, but a ghost, and the record does not seem to lend itself to any kind of remand for any further proceedings.
WILKINS, J., concurs in the views expressed in the dissenting opinion of Mr. Justice HENRIOD, Retired. HALL, J., does not participate herein.. The note has man-made penned notations on its face showing periodic increased changes in interest rates from 7A% to 83A% to 9'/s% to 10'/4% to 13'A% and finally to 133A%.
. Only the note itself and the judgment therein are the documents upon which the plaintiff bases its appeal here.