___________

No. 94-3867

No. 94-3919

___________

United States of America, *

*

Plaintiff, *

*

Ray G. Mair, also known as Ray *

Mair, as personal representative*

for the estate of Juniet N. *

Mair, *

*

Appellant/Cross Appellee, *

*

v. * Appeals from the United States

* District Court for the District

Earl Schwartz; Gladys Schwartz; * of Minnesota.

Earl Schwartz Co.; Kay Schwartz *

York; Kathy Schwartz Mau; Ray *

York; Jarvis York; Jardy York; *

Joanna Kay York; Robert Mau; *

Cassandra Mau; Brekka Mau; *

Kara Lea Schwartz Johnson; *

Crookston Cattle Co., *

*

Appellees/Cross Appellants.*

___________

 Submitted: October 19, 1995

 Filed: July 30, 1996

___________

Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON and ROSS, Circuit Judges.

___________

ROSS, Circuit Judge.

Appellant Ray Mair appeals from the district court's ruling that his

bad faith misconduct relieved Earl and Gladys Schwartz and the Schwartz

family partnership (the Schwartzes) of their duty to
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indemnify Mair on certain notes held by the FmHA. Mair also appeals from

the court's grant of summary judgment in favor of the Schwartzes on Mair's

claim seeking damages for breach of contract. The Schwartzes, in turn,

cross-appeal on certain issues relating to damages. We affirm in part and

reverse in part. 

I.

In 1981, appellant Raymond Mair, a cattle rancher, along with his

wife, borrowed a total of $1,148,275.84 from the FmHA for use in their

business, the Crookston Cattle Company (CCC). The Mairs signed two

promissory notes, both individually and on behalf of the corporation (the

notes). In 1984, the Mairs sold all of the stock in CCC for $5,747,500 to

the Schwartzes, payable in a combination of cash payments over time and the

assumption of two mortgages on the land and various CCC debts, including

the two FmHA promissory notes. The Schwartzes claim that because Mair

misrepresented the amount of tillable acreage owned by CCC, and because of

the general failure of the farm economy in the mid-1980's, they were unable

to pay the Mairs the amounts called for under the purchase agreement.

Ultimately, the primary and secondary lenders foreclosed on the farm. The

FmHA, which held a third secured position, did not collect on its notes.

In 1986, the Mairs filed suit in Minnesota state court for breach of

the purchase agreement, alleging that the Schwartzes had failed to make the

payments to both the Mairs and the FmHA. The Schwartzes counterclaimed for

fraud in the inducement, asserting the Mairs had misrepresented the number

of tillable acres. Through discovery, the Mairs learned that the

Schwartzes were converting FmHA's collateral that secured payment of the

notes by commingling the collateral pledged to the FmHA with other

collateral owned by another Schwartz entity known as Schwartz Farms. 

In 1989, the parties adopted a settlement agreement, whereby
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the Schwartzes agreed to pay the Mairs $1.95 million in cash over time and

to indemnify the Mairs from claims that could be asserted by certain third

parties, including the FmHA. As part of the agreement, the Schwartzes

agreed to resolve or cure any claim within ten days following receipt of

a notice of claim as defined in paragraph 4 of the settlement agreement:

Schwartzes will indemnify Mairs from any and all charges,

claims and liabilities that may arise out of Mairs' personal

obligations under the mortgages and security agreements and

notes which they secure against [CCC] land and assets held by

. . . the FmHA. Mairs agree to notify Schwartzes by certified

mail of any charges, claims or liabilities arising out of the

above-referenced mortgages, security agreements and notes or

Mairs' personal guarantees thereof. Any such notice shall

include information pertaining to the nature and extent of the

claim. A description thereof, including the amount and

particulars of any such charge, claim or liability shall be

included in any such notice. Schwartzes shall have ten days

following receipt of any such notice in which to resolve or

cure the charge, claim or liability to which reference is made.

Paragraph 4 also provided that, if the Schwartzes chose to contest the

claim, their obligation to resolve or cure the claim would be satisfied if

they posted "an amount in cash which would be sufficient to pay such claim,

charge or liability."

Under paragraph 5 of the settlement agreement, the Mairs agreed to

consent to any satisfaction of the FmHA indebtedness, "including an

agreement to sign an FmHA form document in which the Mairs and the

Schwartzes agree that the net recovery value to the FmHA under its mortgage

from [CCC] is zero."

The Schwartzes' obligations under the settlement agreement were

secured by two provisions in the contract, one providing for the posting

of "adequate security" as determined through an arbitration process, and

the other providing for the entry of a $3.5 million confession of judgment

in the event the Schwartzes
 The $2.8 million judgment resulted from the $3.5 million

1

agreed-upon confessed judgment, reduced by the payments the

Schwartzes had made to date.

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defaulted on their obligations. Payments by the Schwartzes or any writedowns of third-party obligations would reduce the confession of judgment.

Following execution of the settlement agreement, the Schwartzes made

regular payments to the Mairs. Substantially all of the $1.95 million plus

interest was paid off by December 1994. The Schwartzes, however, as

before, failed to make any payments to the FmHA.

Mrs. Mair died on October 27, 1991, and on December 31, 1991, the

FmHA filed a claim against her estate in the amount of $1,538,020, plus

additional per diem interest, for payment of the FmHA promissory notes for

which the Mairs remained primarily liable. On January 19, 1992, Mair sent

a copy of the claim to the Schwartzes in accordance with the notice

provision of paragraph 4 of the settlement agreement. The FmHA probate

claim was not allowed by Ray Mair, personal representative of the estate,

and the claim was later disallowed. The government subsequently filed a

petition for allowance, thereby reviving the claim. 

On April 28, 1992, the United States filed this action in federal

court against Ray Mair personally. Mair did not inform the Schwartzes of

this lawsuit. Instead, on May 8, 1992, Mair filed the plea of confession

of judgment without notice in federal court and obtained an ex parte $2.8

million judgment against the Schwartzes. Mair then brought third-party

1

claims against the Schwartzes, seeking damages for breach of their

agreement to indemnify. During the course of the proceedings, the United

States amended its complaint to seek damages against the Schwartzes,

claiming that it was a third-party beneficiary of the settlement
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agreement. 

On June 3, 1992, the Schwartzes contacted the FmHA and offered

$400,000 to settle the $1.5 million obligation to the FmHA. The FmHA

rejected the offer on August 14, 1992, explaining that it was "not viewed

as reasonable" but that further discussion would be welcomed if the

Schwartzes offered "a more substantial portion of the total due." 

The Schwartzes moved to vacate the judgment of confession on August

3, 1992, claiming they were not given proper notice prior to its filing.

Mair opposed the motion, arguing that the Schwartzes had waived the right

to notice in the settlement agreement. The district court granted the

motion to vacate the judgment on October 5, 1992, finding that the

Schwartzes "may not have been notified of the default proceedings nor

served with the third party complaint prior to the entry of default

judgment."

In December 1992, the Schwartzes and the United States negotiated a

$900,000 settlement of the FmHA indebtedness which was conditioned upon the

release of all outstanding claims, including, according to Mair, his crossclaim against the Schwartzes for damages resulting from their alleged

failure to indemnify. Consequently, Mair refused to join in the settlement

as written. Notwithstanding Mair's alleged failure to cooperate, the

Schwartzes successfully settled with the United States on August 23, 1993

for $900,000. In the same instrument, the government assigned the

negotiable FmHA promissory notes to the Schwartzes, including any claims

the government may have had against Mair relative to those notes.

On August 27, 1993, four days after they were substituted as

plaintiffs for the United States, the Schwartzes filed two motions for

summary judgment. First, as third-party defendants, the Schwartzes sought

summary judgment on Mair's cross-claim for breach
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of contract, asserting that their duty as indemnitors had been discharged

because of Mair's bad faith.

Second, the Schwartzes filed a motion for summary judgment as

assignees of the United States, seeking damages of $1,722,754.10 against

Mair on the notes. Only $840,183.69 owed on the notes represented

principal, while the remaining $882,570.41 represented interest and

advances that had accrued during the nine years in which the Schwartzes

failed to make payment on the FmHA loans. 

In January 1994, the district court denied the Schwartzes' motion for

summary judgment on the notes, but granted the Schwartzes' motion for

summary judgment on Mair's cross-claim. The district court concluded that

the Schwartzes' duty to indemnify had not been triggered because Mair

failed to properly notify the Schwartzes of the FmHA claim. Further, the

court held that by obtaining a confession of judgment against the

Schwartzes without first notifying them of the FmHA suit against Mair

personally or without notifying them of his intention to obtain a default

judgment, Mair breached his duty to provide notice under paragraph 4 of the

settlement agreement. 

In addition, the district court held that Mair breached his duty

under paragraph 5 of the settlement agreement, which required him to

"consent to any satisfaction" of the FmHA indebtedness, when he refused to

consent to the proposed $900,000 satisfaction agreement between the

Schwartzes and the United States on the FmHA notes. The court concluded

that "any obligations the Schwartzes had under the Settlement Agreement

were eliminated by the Mairs' bad faith conduct in this matter," including

their duty to indemnify Mair. Accordingly, the court allowed the

Schwartzes to take assignment of the FmHA notes and claims and to sue Mair

on the same notes against which the Schwartzes had agreed to indemnify him.
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In May 1994, the case went forward to trial on the Schwartzes' claims

on the notes. The only issues remaining at trial were whether the

Schwartzes had impaired the collateral securing the notes and, if so, in

what amount. On May 27, 1994, the jury returned a special verdict stating

that Mair had proven an impairment of $1,200,000. The amount of impairment

was subtracted from the stipulated amount still owing on the notes, and

judgment was entered against Mair in favor of the Schwartzes in the amount

of $629,608.16.

II.

Several critical issues are raised in this appeal. We first turn to

the question of notice under the settlement agreement. The district court

concluded that the Schwartzes' indemnification obligations were never

triggered because Mair failed to properly "notify" the Schwartzes of the

FmHA claim against Mrs. Mair's estate. Specifically, the court stated that

the Mairs failed to provide the Schwartzes with information detailing a

specific loss resulting from the FmHA claim. The court held, "[w]ithout

this information, the Schwartzes had no duty to indemnify under the

Settlement Agreement." 

We disagree with the district court's interpretation of the notice

requirement. Under the unambiguous terms of the agreement, the Mairs

agreed to notify the Schwartzes of, among other things, any "claims"

arising out of the mortgages, and that such notice would include

"information pertaining to the nature and extent of the claim[,] [a]

description thereof, including the amount and particulars of any such . . .

claim." 

On January 19, 1992, Mair sent a certified letter to the Schwartzes,

including a copy of the claim filed by the United States, on behalf of the

FmHA, against Mrs. Mair's estate, stating that "[t]his notice is served

. . . pursuant to paragraph 4 of the
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Release and Settlement Agreement." The letter further provided that,

pursuant to paragraph 4 of the settlement agreement, the Schwartzes had ten

days following receipt of this notice to resolve or cure the claim, or to

deposit sufficient funds in escrow to cover the claim if they chose to

contest the liability. 

This "notice" clearly included "information pertaining to the nature

and extent of the claim, . . . including the amount and particulars of" the

claim and therefore satisfied the terms of the settlement agreement.

Contrary to the Schwartzes' argument, Mair was not required to give notice

of a lawsuit or the commencement of another enforcement proceeding, or

notice of a specific loss resulting from the claim. On the contrary, Mair

was only required to give notice of a "claim." Mair satisfied this

obligation. This conclusion, however, does not end our inquiry. 

Immediately following notification of the probate claim, Terri Groen,

the Schwartzes' attorney, requested an accounting of the value of Mrs.

Mair's estate on several occasions. Ms. Groen explained that any escrow

amount required under paragraph 4 of the settlement agreement would be

limited to the amount of the potential loss to be suffered if the FmHA was

successful in pursuing its claim against the estate. In other words, if

the value of the estate was less than the outstanding balance of the FmHA

loans, the maximum potential loss would be an amount equal to the value of

the estate. The Schwartzes asserted that they were not required under the

terms of the settlement agreement to deposit the full amount of the FmHA

indebtedness, but only to "escrow an amount . . . sufficient to pay such

claim, charge or liability." Settlement Agreement, ¶ 4 (emphasis added).

Nevertheless, Mair refused to provide what he considered to be confidential

financial information to the Schwartzes. 

We disagree with the district court's conclusion that Mair's failure

to provide such information rendered the notification of
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the claim deficient. Instead, we conclude that Mair's unwillingness to

cooperate prevented the Schwartzes from complying with their duty to

resolve or cure the claim within ten days as required by the agreement.

As such, while the Schwartzes' duty to indemnify was adequately triggered,

the undisputed facts show that they were prevented from doing so by Mair's

own failure to cooperate. Thus, the Schwartzes' duty to resolve or cure

the claim within ten days was excused under these circumstances. See Zobel

& Dahl Constr. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984) ("[E]very contract

contains an implied condition that each party will not unjustifiably hinder

the other from performing."); Craigmile v. Sorenson, 80 N.W.2d 45, 49

(Minn. 1956) (where promisor is the cause of the failure of performance,

"he cannot take advantage of the failure") (citing 3 Williston, Contracts

(Rev. ed.) § 677).

III.

We next address the district court's determination that the

Schwartzes' entire obligation under the settlement agreement was

extinguished due to Mair's bad faith. The court's conclusion was based on

its findings that Mair breached the settlement agreement by filing the plea

of confession without prior notice and that Mair acted in bad faith by

failing to consent to the Schwartzes' $900,000 settlement agreement with

the FmHA. Upon review, we hold the district court erred in reaching these

conclusions.

First, the district court misapplied the clear terms of the

settlement agreement by concluding that Mair breached the notice

requirements of paragraph 4 when he filed the confession of judgment

without first informing the Schwartzes of his intention to do so. Under

paragraph 4, the Mairs agreed to "notify Schwartzes . . . of any claims."

As we have previously held, Mair satisfied this obligation. The district

court, however, apparently interpreted the contract to require Mair to send

an additional "notice of default" prior to filing the confession of

judgment. 
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Paragraph 3(c) provides:

If Schwartzes fail to make any payment when due hereunder, and

fail to cure said default within ten days after Mairs give

notice of default by certified mail . . ., Mairs or their

attorney in fact may file said judgment against the Schwartzes

in any court in the State of Minnesota and proceed to exercise

all remedies to collect said judgment. . . .

The "notice of default" reference in paragraph 3(c) does not impose an

additional notice requirement on Mair, but instead refers to the

Schwartzes' "fail[ure] to make any payment when due" under the settlement

agreement. It is the Schwartzes' failure to make payment that results in

the referenced "default," and not their failure to cure a claim within ten

days. Therefore, under the unambiguous terms of the agreement, "notice of

claim" is synonymous with "notice of default" and Mair satisfied this

obligation via the January 19, 1992 letter to the Schwartzes. The district

court erred in holding that Mair breached the settlement agreement by

failing to inform the Schwartzes of his intention to file the confession

of judgment. Consequently, the court erred in negating the Schwartzes'

duty to indemnify based on this erroneous conclusion.

The district court also erred in concluding that any alleged bad

faith on the part of Mair excused the Schwartzes' entire obligation to

indemnify. While some courts have established the blanket proposition that

bad faith on the part of the indemnitee releases the indemnitor from his

obligations under the contract, other courts, particularly the Minnesota

Supreme Court, hold that an indemnitee's bad faith will discharge the

indemnitor to the extent that he has been damaged as a result of that act.

 In New Amsterdam Cas. Co. v. Lundquist, 198 N.W.2d 543, 549 (Minn. 1972)

the Minnesota Supreme Court held:

[A]n indemnitee owes a duty of good faith to its
 Mair, of course, claims there was no bad faith in his refusal 2

to sign the agreement as written because it required him to release

his claims against the Schwartzes for breaching the original

settlement agreement. He asserts that notwithstanding his promise

to consent to a satisfaction agreement with the FmHA, he was not

legally required to release all of his claims against the

Schwartzes.

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indemnitor and . . . any act of the indemnitee which prejudices

the rights of the indemnitor will release his obligation to the

extent of the prejudice.

(Emphasis added). See also Denton v. Fireman's Fund Ind. Co., 352 F.2d

95, 99 (10th Cir. 1965).

Contrary to the clear law of Minnesota, the district court in the

present case discharged the Schwartzes' entire obligation under the

settlement agreement, without giving any consideration whatever to the

extent, if any, of the prejudice suffered by the Schwartzes as a result of

Mair's alleged bad faith. Even assuming that Mair acted in bad faith in

failing to consent to the proposed $900,000 settlement , the Schwartzes

2

were ultimately able to settle with the government for that exact amount,

and thus suffered no prejudice. 

Because they suffered no prejudice as a result of Mair's alleged bad

faith, the Schwartzes' obligation to indemnify under the settlement

agreement remained intact. The district court erred in concluding that the

Schwartzes no longer had a duty to indemnify Mair for claims arising from

the notes, and further erred in its concomitant holding that the Schwartzes

were entitled to sue Mair on the remaining balance of the notes, the same

notes for which the Schwartzes agreed to hold Mair harmless. To hold

otherwise would produce the untenable result of allowing the Schwartzes to

profit from their failure to satisfy their own indebtedness to the FmHA.
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IV.

In summary, we hold that Mair adequately notified the Schwartzes of

the FmHA's claim against Mrs. Mair's estate. In this respect, we conclude

that the indemnification agreement was triggered and the Schwartzes had a

duty to indemnify Mair from this claim. However, the Schwartzes' attempts

to cure the claim were thwarted by Mair's failure to cooperate. Therefore,

the Schwartzes did not breach their duty to indemnify under the settlement

agreement and Mair was not entitled to the default judgment outlined in the

confession of judgment. 

Finally, we conclude the Schwartzes were not prejudiced by any

alleged bad faith on the part of Mair as indemnitee, as the Schwartzes were

ultimately able to settle with the United States in an amount identical to

that proposed to and rejected by Mair. As such, the Schwartzes' duty to

indemnify remained intact and the district court erred in allowing the

Schwartzes to sue Mair on the same obligations under which they had agreed

to indemnify him.

This conflict has lasted for ten years now, each party contributing

to a bitter and protracted legal battle. Neither party comes to this court

with entirely clean hands and neither party is entitled to the respective

windfalls that they seek. Both parties have received substantially what

they bargained for.

Our conclusions herein obviate the need to discuss any further issues

presented in either the appeal or cross-appeal. The denial of Mair's

motion for damages incident to the confession of judgment is affirmed. The

order granting the Schwartzes' motion to be substituted as plaintiffs and

the judgment in favor of the Schwartzes as assignees of the notes are

reversed. 
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.