December 1, 1960 —
January 10, 1961.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellants there were briefs by Gene Posner and Bendinger, Hayes Kluwin, attorneys, and M.J. Levin of counsel, all of Milwaukee, and oral argument by Mr. Levin and Mr. Posner.
For the respondent there was a brief by Ray T. McCann and Leonard L. Loeb, both of Milwaukee, and oral argument by Mr. McCann.
Summary judgment. Action by the plaintiff to recover $150,000 on a contract of the defendant, Airport Center, Inc., and on a guaranty of the defendants, Harold Sampson and Bernard J. Sampson. The defense is nonperformance, false and fraudulent representations, and lack of consideration. From the order denying their motion for summary judgment, the defendants appealed.
The complaint alleges the plaintiff had an interest in a proposed shopping center and by contract with the defendant, Airport Center, Inc., such interest was determined at $150,000, which was to be paid in instalments commencing February, 1956. Upon failure to pay any instalment, the whole sum was to become due and owing. It is further alleged that the individual defendants unconditionally guaranteed the faithful performance of this contract. The answer alleges the contract and guaranty were procured by false and fraudulent representations and were without consideration, and the contract was not performed by the plaintiff.
Attached to an affidavit in support of the motion are various contracts. Exhibit B is an agreement executed February 20, 1956, by Airport Center, Inc., and the plaintiff, reciting the corporate defendant was engaged in promoting a shopping center in Milwaukee near the Milwaukee County Airport and had engaged the services of the plaintiff, a licensed real-estate broker, to secure tenants, and the parties desired to discontinue their business relationships and place a value on the services rendered by the plaintiff. The contract set the reasonable value of the plaintiff's services at $150,000 and provided for instalment payments by Airport Center, Inc. The plaintiff agreed, among other things, to turn over all his records and files relating to the negotiations of leases. The contract provided the $150,000 represented the full amount due from the defendants and released them from any claims other than for the $150,000.
Contemporaneously with this contract, Exhibit C was executed, which is entitled "Guaranty," whereby the defendants Harold and Bernard J. Sampson, in consideration of the execution of the agreement by the plaintiff with Airport Center, Inc., unconditionally guaranteed the payment of the $150,000 in accordance with the terms and provisions of the agreement. Exhibit D, a contemporaneous contract between the plaintiff and the three defendants, referred to the agreement for the payment of $150,000, and provided the said agreement shall be binding only in the event J.C. Penney Company shall execute a lease covering premises in the shopping center within sixty days. The defendant, Airport Center, Inc., agreed to deliver to one Emil Hersh not later than the following day "the necessary plat plan and legal description for delivery to J.C. Penney Company for the purpose of preparation of leases." This contract also provided in the event the Penney Company failed to execute the lease, the agreement between the plaintiff and the defendant, Airport Center, Inc., shall terminate and the plaintiff's rights revert back to an agreement theretofore existing between the plaintiff and the individual defendants. The contract further provided the plaintiff was not required to negotiate any leases until the Penney lease was signed or the agreement terminated by its own limitation, and no leases would be signed by Airport Center, Inc., without the consent of the plaintiff until the Penney lease was executed. Exhibit E, another contract of the same date, is a mutual release between the parties of all claims except the one for $150,000.
The agreement, guaranty, and mutual release were deposited with Emil Hersh until the Penney lease was executed or the agreement terminated, and Exhibit F is a receipt of Mr. Emil Hersh for such deposit. Exhibit G is a proposed lease which was executed on the 9th day of March, 1956, by Airport Center, Inc., but not signed by J.C. Penney Company. Exhibit H, dated April 19, 1956, is an agreement between the parties reciting that various agreements had been entered into on February 20th pursuant to which the plaintiff was to be paid certain moneys upon condition the J.C. Penney lease was to be executed within sixty days, which time had expired and whereby the parties agreed to an extension of the time until May 21, 1956, within which the Penney lease might be procured and executed. Exhibit I, dated September 4, 1956, contains substantially the same recital as Exhibit H and extended the time within which the Penney lease might be executed to November 1, 1956, and also granted the plaintiff an option to that date within which to effect the sale of the airport shopping center. This agreement provided that in the event the Penney lease was not executed within the time provided and no purchaser of the shopping center was procured by the plaintiff, then the rights of the parties shall revert back to the agreements of February 20, 1956.
A counteraffidavit of the plaintiff set forth a contract entered into in June, 1955, between the plaintiff and the individual defendants, relating to the plaintiff's interest in a proposed shopping center on the northeast corner of South Howell and West Layton avenues, city of Milwaukee. This land was subsequently sold for airport extension and property on the southwest corner of said intersection was acquired and the plaintiff's interest defined. In another affidavit of the plaintiff it is stated the execution of the Penney lease was conditioned upon the delivery of a necessary plat plan and legal description by February 22d to Emil Hersh, and such a plat plan was never delivered. The affidavit also stated the form of the Penney lease required such a plat plan to be made a part thereof, the failure of the defendants to provide such a plan made the execution of the lease impossible, the plaintiff was not required to procure the Penney lease, the guaranty of the individual defendants was not conditioned upon the execution of the lease, and the agreement (Exhibit D) referring to the furnishing of the necessary plat plan did not refer to the guaranty.
The adverse examination of Bernard J. Sampson was included in another affidavit. The affidavit of Pollock, an employee of Penney, states he advised the defendants before the lease could be submitted to the Penney Company that it must have attached a plat plan showing the exact store and basement area leased, parking areas provided, together with sidewalks, aisles, streets, and the location of two supermarkets and one variety store of certain types and area requirements; that the defendants agreed to furnish such a plat plan; that the plat plan furnished to Emil Hersh under date of February 21st only showed the area leased to Penney. An affidavit of Emil Hersh states that the defendants never furnished the necessary plat plan.
In support of the motion, another affidavit attempted to incorporate by reference a pending case in the circuit court of Milwaukee county between the parties involving the June, 1955, contract. An affidavit of Herbert Friedlen set forth a copy of the Hersh letter of February 21, 1956, which inclosed a legal description of the property and four copies of a plat plan in which area "C" was designated as being leased to Penney. The letter stated the other tenants had not been designated on the plat because it had not been determined where they would be located and they were waiting for Penney to sign the lease. A request was made for Penney to prepare the lease for signature immediately. The affidavit stated that the proposed 32-page lease was prepared by Penney. This lease (Exhibit G in the Sampson affidavit), contains the legal description and refers to a designated area outlined in red on a plat, attached and marked Exhibit A which, however, is not attached. In article XXIX, Airport Center, Inc., covenants and agrees to erect a building in accordance with details and specifications set forth therein. By article XXXII, the landlord represents and warrants bona fide leases have been entered into or will be entered into by two supermarkets and a variety store of designated types for minimum areas in the shopping center. The lease also provides Penney may cancel the lease if Airport Center, Inc., failed to exhibit to Penney within one hundred and eighty days after the execution of the lease, fully executed leases with said tenants.
The appeal was argued on the basis that the material evidentiary facts were not in dispute. The defendants contended the documents executed on February 20, 1956, although separate, are to be construed as one contemporaneous agreement, and the guaranty of the individual defendants was effective only if the corporate defendant was liable to pay $150,000, and this liability was contingent upon the execution of the Penney lease. Because this lease was not secured through any fault of theirs, the rights of the parties are governed by the prior agreement of June, 1955, and not the contracts sued on.
The plaintiff contended the guaranty was unconditional and unconditioned, and if it was conditioned upon the liability of the corporate defendant to pay the $150,000, that liability exists because the defendants prevented the procurement of the Penney lease by their failure to furnish a necessary plat plan.
Before we reach the questions of law attempted to be raised on the motion for summary judgment, there must be no unresolved material questions of fact existing in the record. If there are, or if inferences must be drawn from the facts either to support or deny the application of the propositions of law advanced, this court cannot grant summary judgment. It is not the function of this court to resolve material questions of fact or to draw inferences which may be doubtful or uncertain, but to determine if such questions exist. The affidavits, both in support of and in opposition to the motion, contain — besides some evidentiary facts — arguments of counsel, conclusions of law, and interpretations of the various documents, all of which, other than the material evidentiary facts, must be disregarded. As the record now stands there exist questions of fact relating to the guaranty and particularly to the necessary plat plan. There may be other questions of fact, but the ones pointed out are of such importance and materiality they must be resolved by trial.
The rules governing the granting and denial of such motions, whether brought by the plaintiff or the defendant, have been the subject of many decisions in this court. In Voysey v. Labisky (1960), 10 Wis.2d 274, 277, 103 N.W.2d 9, we attempted to summarize some of them when we stated:
"The rule is well established in this state that when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. Likewise, when there is credible evidence which under any reasonable view will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should prevail. Elder v. Sage (1950), 257 Wis. 214, 42 N.W.2d 919. We have often said that the power of the courts under the summary-judgment statute (sec. 270.635, 33 W.S.A., p. 309) is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. De Bonville v. Travelers Ins. Co. (1959), 7 Wis.2d 255, 96 N.W.2d 509, 97 N.W.2d 392; Ondrejka v. Ondrejka (1958), 4 Wis.2d 277, 90 N.W.2d 615; Braun v. Jewett (1957), 1 Wis.2d 531, 85 N.W.2d 364; Udovc v. Ross (1954), 267 Wis. 182, 64 N.W.2d 747, 66 N.W.2d 200."
See also Milwaukee County v. Milwaukee Yacht Club (1950), 256 Wis. 475, 41 N.W.2d 372; McLoughlin v. Malnar (1941), 237 Wis. 492, 297 N.W. 370; Laughnan v. Griffiths (1955), 271 Wis. 247, 73 N.W.2d 587; Home Savings Bank v. Bentley (1958), 5 Wis.2d 19, 92 N.W.2d 377; McChain v. Fond du Lac (1959), 7 Wis.2d 286, 96 N.W.2d 607; Hyland Hall Co. v. Madison Gas Electric Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305.
We find no error in the trial court's denial of the defendants' motion for summary judgment.
By the Court. — Order affirmed.