Opinion
No. 5466.
Argued April 6, 1966.
Decided May 31, 1966.
1. Summary judgment procedure is designed to save time, effort and expense by allowing a final judgment to be entered immediately in those cases where there is no genuine issue of material fact requiring a formal trial.
2. The party seeking a summary judgment has the burden of showing the absence of any genuine issue, and the material and pleadings on file are viewed in the light most favorable to the adversary.
3. Where defendants' motion for summary judgment, in an action against it to recover for labor and materials, supported by affidavits that all sums due had been paid was contradicted by affidavits of the plaintiff stating that defendants acknowledged that payment in full has not been made, a genuine issue of material fact was thus established requiring a formal trial and denial of the motion for summary judgment.
Appeal by the defendants, Kenneth E. Garland and Florence L. Garland, from the denial of their motion for summary judgment which was reserved and transferred by Leahy, C. J. The defendants engaged the Titus Construction Company (hereinafter called Titus) as prime contractor to construct a commercial building on their property. The plaintiff was engaged by Titus as a subcontractor to install air conditioning and heating in the building. On June 16, 1965 the plaintiff brought a writ against Titus to recover $9,408 for labor, services and materials and attached the defendants' real estate, buildings and heating plant to preserve its mechanic's lien. RSA ch. 447. Titus was petitioned into involuntary bankruptcy on June 11, 1965 and was adjudicated a bankrupt on July 23, 1965.
The defendants on August 11, 1965 filed a motion for summary judgment supported by an affidavit that defendants "had paid" Titus "all sums owed to [Titus] for construction of [the] building . . . prior to June 16, 1965," the date of plaintiff's writ. Prior to the hearing on September 14, 1965 defendants filed a supplementary affidavit "that final payment of all sums due [Titus] was made upon April 7, 1965."
The plaintiff's answer to the defendants' motion for summary judgment filed August 26, 1965 alleged that defendants had produced no records or documents showing that Titus had been paid in full and when defendants' payments, if made at all, were actually made. Affidavits in support of the answer were filed by the president and treasurer of the plaintiff stating the conversations that had been held between them and the defendant Kenneth E. Garland on May 10 and May 14, 1965. According to these affidavits the defendant Garland had advised the officers of the plaintiff "that there was money due the prime contractor" Titus; that Titus "had definitely not been paid in full" and that plaintiff "had nothing to worry about its bill since there was more than enough to cover it." The plaintiff also stated that they withheld bringing their writ in reliance on the statements by defendant Garland.
Booth, Wadleigh, Langdell, Starr Peters and Charles J. Dunn (Mr. Dunn orally), for the plaintiff.
Snierson Chandler for Titus Construction Co., Inc., filed no brief.
Frederic T. Greenhalge (by brief and orally), for the defendants Kenneth E. Garland and Florence L. Garland.
The issue in this case is whether the defendants' motion for summary judgment should have been granted. "Summary judgment procedure is designed to save time, effort and expense by allowing a final judgment to be entered immediately in those cases where there is no genuine issue of material fact requiring a formal trial." Nashua Trust Co. v. Sardonis, 101 N.H. 166, 168. We conclude that the Trial Court correctly denied the defendants' motion for summary judgment and the defendants' exceptions are overruled.
Summary judgment (RSA 491:8-a (supp)) is "an excellent device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved." 3 Barron Holtzoff, Federal Practice and Procedure, s. 1231, p. 96 (Wright ed. 1958). "To take a simple example, if in an action on a promissory note, the defendant in his answer denies the making of the note; the plaintiff makes a motion for summary judgment, accompanying it by an affidavit of a person who swears that he saw the defendant sign the note; and the defendant does not file an opposing affidavit, summary judgment should be rendered for the plaintiff. On the other hand, if the defendant files an affidavit to the effect that his purported signature is a forgery or that it was affixed by a person not authorized to do so, a genuine issue as to a material fact is created, and the case must go to trial." 3 Barron Holtzoff, supra, 97.
In the present case the defendants, moving for summary judgment, had the burden of showing the absence of any genuine issue and the material and pleadings on file are viewed in the light most favorable to the adversary. James, Civil Procedure, s. 6.18, p. 235 (1965). The defendants' affidavit that it had paid all sums due the prime contractor on April 7, 1965 is contradicted by the plaintiff's affidavits. The plaintiff's affidavits state that the defendants acknowledged on May 10 and May 14, 1965 that the prime contractor had not been paid in full and that there was money enough "to cover" the plaintiff's bill. This created a genuine issue of material fact which required a trial. Salitan v. Tinkham, 103 N.H. 100; Community Oil Co. v. Welch, 105 N.H. 320. It is not the purpose of summary judgment procedure to deny a litigant a right of trial where there is a genuine issue of material fact to be litigated. Community Oil Co. v. Welch, supra, 322.
The plaintiff has submitted alternative arguments in support of its position that summary judgment should not be entered in this case. Guiher, Summary Judgments — Tactical Problem of the Trial Lawyer, 48 Va. L. Rev. 1263 (1962). Inasmuch as the pleadings and affidavits disclose a genuine issue of material fact between the parties, it is unnecessary to consider the plaintiff's alternative contentions.
Defendants' exceptions overruled.
All concurred.