Bjornsen Const. Co. v. J. A. Whitmer & Sons

Decision Date12 February 1963
Docket NumberNo. 50742,50742
Citation254 Iowa 888,119 N.W.2d 801
PartiesBJORNSEN CONSTRUCTION COMPANY, Inc., Appellee, v. J. A. WHITMER & SONS, a partnership, Keith Whitmer, Barbara A. Whitmer, J. A. Whitmer and Veima B. Whitmer, Appellants.
CourtIowa Supreme Court

Robert C. Nelson, Cedar Rapids, for appellants.

David G. Bleakley and Harold D. Vietor, Cedar Rapids, for appellee.

LARSON, Justice.

The sole issue presented by this appeal is whether the trial court erred in sustaining plaintiff's motion for a summary judgment in an action on a promissory note. The question is as to the sufficiency of appellants' affidavit filed in resistance to plaintiff's motion, i. e. whether it stated a substantial issue of fact which, if taken as true, would justify a trial on the merits. The trial court held the sole test was whether the affidavit presented such an issue, found that it did not, and rendered judgment in favor of plaintiff and against the defendant appellants Velma B. Whitmer and Barbara A. Whitmer in the sum of $3,948.57, with interest at 6% per annum from April 1, 1960, and for costs and statutory attorneys fees.

Plaintiff brought this action on a promissory note signed by defendants J. A. Whitmer & Sons, Keith Whitmer, Barbara A. Whitmer, J. A. Whitmer and Velma B. Whitmer, as co-makers, under date of April 1, 1960, in the principal sum of $3,948.57, payable $300.00 per month beginning April 1, 1960. Barbara A. Whitmer and Velma B. Whitmer filed their separate answer, admitted the execution of the note, but alleged the amount represented a debt of J. A. Whitmer & Sons, a partnership 'which sum was due the plaintiff upon an open account', and that while they are the respective spouses of Keith Whitmer and J. A. Whitmer, they are not members of the partnership, were in no way indebted to plaintiff, that they received no thing of value for their signatures on the note, and that the instrument as to them was wholly without consideration.

On November 6, 1961, plaintiff filed its verified motion for summary judgment and, in resistance thereto, these appellants filed their affidavit as follows: 'I, Velma B. Whitmer, being first duly sworn, on oath depose and state, that I am one of the defendants in the above captioned cause, as is my daughter-in-law, Barbara A. Whitmer, further that I am the spouse of J. A. Whitmer, and the said Barbara A. Whitmer is the spouse of Keith Whitmer. Further, that my spouse, and my two sons, were engaged as a partnership in the construction business in the City of Cedar Rapids, Iowa. Further I state that neither the said Barbara A. Whitmer, nor myself, were ever members of the said partnership, at no time did we ever engage in the said construction business, we had no part in the operation, management, nor did we share in any profits of the said J. A. Whitmer and Sons construction business. In 1960 the said J. A. Whitmer and Sons partnership, consisting of my husband and two sons, was duly discharged in Bankruptcy in the United States District Court of Iowa, the Northern District thereof.

'Further and still on oath, I state that with reference to the note of this action, that the said Barbara A. Whitmer or this affiant was at no time indebted to the said Bjornsen Construction Company, Inc., as a result of the partnership business of J. A. Whitmer and Sons; further I state that neither the said Barbara A. Whitmer or this affiant, at the time the said note was signed by the said Barbara A. Whitmer and this affiant, that we received no money and nothing of value, no promise of any kind from the said Bjornsen Construction Company, Inc., and/or its officers, or directors, and we never talked with any person of the said Corporation, its agents, officers, or its representatives. That the above and foregoing statements are made in resistance to the plaintiff's motion for summary judgment and constitute a good defense.'

Thus the ultimate facts set forth in the resistance affidavit of Velma B. Whitmer are that these appellants, Velma B. Whitmer and Barbara A. Whitmer, are the respective spouses of defendants J. A. Whitmer and Keith Whitmer, that their husbands and another son of Velma were engaged as partners in the construction business, that these appellants did not engage in that business, did not have any part in the operation and management of it nor share in its profits, that they were at no time indebted to plaintiff as a result of the partnership business, that they received no money or thing of value, no promise of any kind from plaintiff or its officers or directors and never talked with its agents, officers or representatives. Are these ultimate facts sufficient to establish a lack or failure of consideration, as claimed by appellants, and to permit them to defend in this cause? The trial court thought not, and we must agree.

I. Rule 237, R.C.P., 58 I.C.A., so far as applicable here, states: 'Summary judgment may be entered in an action, upon any claim * * * (a) To recover a debt, or some other money demand which is liquidated, with or without interest arising on a negotiable instrument * * *.' Clearly, plaintiff's action is one in which summary judgment may be entered.

Rule 238, R.C.P., provides a plaintiff making such a claim may file a motion for summary judgment supported by affidavit and 'Judgment shall be entered as prayed in the motion unless * * * defendant resists it with affidavits showing facts which the court deems sufficient to permit him to defend.' (Emphasis supplied.) See Credit Industrial Co. v. Happel, Inc., 252 Iowa 213, 215, 106 N.W.2d 667, and authorities cited therein.

The purpose of the summary judgment and the affidavits connected therewith we fully considered and discussed in the recent case of Eaton v. Downey, Iowa, 118 N.W.2d 583, filed December 11, 1962. We said the purpose is to enable a party with a just cause of action to obtain judgment promptly and without the delay and expense of a trial, where there is no substantial or relevant issue to try. See Cook, Iowa Rules of Civil Procedure, Vol. 2, Rule 237, Advisory Committee Comment, page 695, Author's Comment, page 696; Petit v. Ervin Clark Construction, Inc., 243 Iowa 118, 49 N.W.2d 508; and Credit Industrial Co. v. Happel, Inc., supra.

In Eaton v. Downey, supra, we considered the cases cited by appellants of Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597, 4 N.E.2d 450, 107 A.L.R. 1215, and Atlas Investment Co. v. Christ, 240 Wis. 114, 2 N.W.2d 714. We have no quarrel with the rule announced therein that a summary judgment should not be granted if the affidavit of defense shows a substantial issue of fact. It must, of course, be an issue of fact which would, if decided in defendant's favor, be a good defense to the action. Just any irrelevant or immaterial factual...

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  • Schroedl v. McTague
    • United States
    • Iowa Supreme Court
    • 20 Septiembre 1966
    ...defendant, would be a good defense. International Milling Co. v. Gisch, 256 Iowa 949, 129 N.W.2d 646; Bjornsen Construction Co. v. J. A. Whitmer & Sons, 254 Iowa 888, 119 N.W.2d 801; Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 277, 106 N.W.2d 579, and citations; Eaton v. Downey, sup......
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    ...of the obligation. Beneficial Finance Co. of Waterloo v. Lamos, 179 N.W.2d 573 (Iowa 1970); Bjornsen Construction Co. v. J. A. Whitmer & Sons, 254 Iowa 888, 119 N.W.2d 801 (1963). In the absence of fraud or like showing, lack of intent on Arlene's part, however lamentable, does not release ......
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    • Iowa Supreme Court
    • 12 Diciembre 1967
    ...where there is no fact issue to try. Eaton v. Downey, 254 Iowa 573, 577, 118 N.W.2d 583, 585; Bjornsen Construction Co. v. J. A. Whitmer & Sons, 254 Iowa 888, 892, 119 N.W.2d 801, 803. The debt upon which plaintiff's cause is based was liquidated. The amount claimed to be due is a 'liquidat......
  • Central Sav. & Loan Ass'n v. Gaumer
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    • Iowa Supreme Court
    • 6 Mayo 1969
    ...Eaton v. Downey, 254 Iowa 573, 118 N.W.2d 583; Schroedl v. McTague, 259 Iowa 627, 145 N.W.2d 48, and Bjornsen Construction Co. v. J. A. Whitmer & Sons, 254 Iowa 888, 119 N.W.2d 801. Errors which do not affect jurisdiction in its true sense, and errors as to the reason for a proper holding, ......
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