Pelege v. Chrysler

Citation563 P.2d 701,278 Or. 223
PartiesMisha N. PELEGE, Respondent, v. David L. CHRYSLER, Appellant.
Decision Date03 May 1977
CourtSupreme Court of Oregon

Marvin S. Nepom, Portland, argued the cause for appellant. With him on the brief were Ray F. Merry and King & Merry, Portland.

William A. Furtick, Eugene, argued the cause for respondent. With him on the brief was David F. Lentz, Eugene.

Before DENECKE, C.J., and HOLMAN, LENT and O'CONNELL, JJ.

O'CONNELL, Justice Pro Tem.

Defendant appeals from a summary judgment entered in favor of plaintiff.

On June 10, 1972, plaintiff loaned $10,000 to defendant, which defendant agreed to pay with interest at 8 percent per annum within three months. As a part of the same transaction, plaintiff was given the option to exchange the note for shares in a corporation to be established or, in the alternative, to contribute the capital in a joint venture, sharing profits and losses with defendant. The option was exercisable on or before September 1, 1972.

On September 4, 1975, plaintiff brought this action to recover the $10,000 loaned together with interest from June 10, 1972. Defendant answered on the theory that plaintiff had elected to become a joint venturer with defendant; and the joint venture having suffered losses, defendant counterclaimed to recover such losses.

The trial court, after examining the pleadings, several affidavits and exhibits, found that there was no genuine issue of any material fact, and entered a summary judgment for plaintiff.

Both parties recognize that whether plaintiff elected to participate in the joint venture in lieu of his position as defendant's creditor is a question of fact. Plaintiff contends that this question of fact was resolved by the pleadings, affidavits and exhibits on file at the time of the hearing on the motion for summary judgment. 1 Defendant takes the position that the question of whether plaintiff's status is that of creditor or joint venturer is not determinable by an examination of the evidence relied upon to support the summary judgment and that the factual issue must be tried out in a usual trial proceeding.

It is to be borne in mind that the written agreement of June 10, 1972, set September 1, 1972 as the expiration date for the exercise of the option. It is undisputed that as late as March 15, 1973, defendant recognized plaintiff as a creditor because on that date defendant wrote a letter to plaintiff enclosing a check for 10 months' interest on the loan. Plaintiff returned ithis check to defendant. Defendant contends that in returning the check plaintiff stated that he had exercised his option to be a joint venturer and not a creditor. In response to this contention plaintiff produced a letter written by defendant on January 14, 1975 addressed to plaintiff's attorney, in which defendant gave an explanation for returning the money which is inconsistent with his assertion that plaintiff terminated his status as creditor. In that letter, defendant wrote:

'* * * Later, Mr. Pelege declined to accept the option offered and I offered to make an interest payment. Make (Mr. Pelege) knew that I was having business difficulties and As a gesture of friendship offered to postpone any interest payments. I have a letter from him dated Mrch 25, 1973 attesting to this.' (Emphasis added.)

Then after reciting the income and expenditures in developing the property which was to be the joint venture, to show the loss defendant was suffering he continued:

'Business has been bad lately, Mr. Lentz, as I don't need to inform you. Right now I can't gave any estimate at all of when I can pay Mike any money.' (Emphasis added.)

Defendant's letter proves that as late as January 14, 1975, defendant regarded plaintiff as his creditor rather than as his co-venturer.

Defendant argues that the January 14 letter is at least ambiguous in that the reference to 'when I can pay Mike any money' could as well apply to a payment of Mike's share of the joint venture. This is a strained interpretation of the letter. The expression 'when I can pay' connotes an obligation, prticularly in view of the fact that in an earlier paragraph defendant explained the reason for Mike's return of the proffered interest payment, a reference which would have no purpose in a letter...

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12 cases
  • Comley v. Emanuel Lutheran Charity Bd., 417-542
    • United States
    • Court of Appeals of Oregon
    • 1 Agosto 1978
    ...counter-affidavits or conflicting evidence, facts set forth in a supporting affidavit will be taken as true. See, Pelege v. Chrysler, 278 Or. 223, 227, 563 P.2d 701 (1977). The foregoing principle applies to Dr. Johnson's defense. Plaintiff's cause of action is based on the administration o......
  • Taylor v. Baker
    • United States
    • Supreme Court of Oregon
    • 12 Julio 1977
    ...until defendants, the moving parties, had offered evidence that would entitle them "to a directed verdict." See Pelege v. Chrysler, 278 Or. 223, 227 n.2, 563 P.2d 701 (1977). From our review of the two depositions offered by defendants, we conclude that defendants failed in their burden of ......
  • Hamilton v. State
    • United States
    • Court of Appeals of Oregon
    • 22 Octubre 1979
    ...of whether the City should have realized the likelihood of vandalism and taken measures to secure the manhole. In Pelege v. Chrysler, 278 Or. 223, 227 n. 2, 563 P.2d 701 (1977), the court "In Doff v. Brunswick Corporation, 372 F.2d 801, 805 (1966), Cert. denied 389 U.S. 820, 88 S.Ct. 39, 19......
  • Carlson v. City of Portland
    • United States
    • Court of Appeals of Oregon
    • 24 Marzo 1980
    ...party to "set forth specific facts showing that there is a genuine issue as to any material fact for trial." See Pelege v. Chrysler, 278 Or. 223, 227, 563 P.2d 701 (1977); Gleason v. International Multifoods Corp., 282 Or. 253, 257-58, 577 P.2d 931 (1978); Bevan v. Garrett, 284 Or. 293, 298......
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