Bryant v. Bowles, 5629

• Decision Date: 31 October 1967
• Docket Number: No. 5629,5629
• Citation: 234 A.2d 534,108 N.H. 315
• Parties: Donald R. BRYANT, Adm'r w/w/a v. Raimond BOWLES et al.
• Court: New Hampshire Supreme Court

Page 534

234 A.2d 534

108 N.H. 315

Donald R. BRYANT, Adm'r w/w/a v. Raimond BOWLES et al.

No. 5629.

Supreme Court of New Hampshire.

Argued Sept. 7, 1967.

Decided Oct. 31, 1967.

Burns, Bryant, Hinchey & Nadeau and Paul R. Cox, Dover, for plaintiff.

Calderwood, Silverman & Ouelette and David S. Sands, Dover, for defendants.

GRIFFITH, Justice.

On or about May 1, 1957 a group of buyers composed of defendant Bowles and the five others entered into an agreement with Batchelder Oil Company, Inc. and the corporation's owner Harry D. Batchelder. In this agreement Batchelder agreed to sell and the buyers agreed to purchase all of the Batchelder interests in the Batchelder Oil Company, Inc. for $106,000, payable in the following manner: (1) $13,000 in cash on May 1, 1957; (2) a promissory note for $18,800 payable June 1, 1957 with interest at five per cent, and the balance of $74,200 by the promissory notes of Bowles and the Dunfeys payable on the following dates and in the following amounts, plus interest at five per cent payable semi-annually: June 1, 1958, $18,200; June 1, 1959, $8,000; June 1, 1960, $8,000; June 1, 1961, $8,000; June 1, 1962, $8,000; June 1, 1963, $8,000; June 1, 1964, $8,000; June 1, 1965, $8,000.

Concurrent with this agreement was an additional agreement by which Bowles and the others were to purchase from Batchelder certain real estate owned by him situate in Newington and Farmington, New Hampshire, in the amount of $40,000.

On or about June 1, 1958 defendant Bowles and defendant Coleman made an agreement by which Bowles acquired all the stock in the oil company and the other buyers were indemnified against liability on the then outstanding notes. Coleman on July 1, 1958 unconditionally in writing guaranteed payment of the unpaid series of notes, each in the amount of $8,000, payable June 1, 1959 through June 1, 1965.

In 1964 Bowles had fallen behind in his payments on the notes and Mr. Batchelder, who was living at that time, finally placed them in the hands of his attorney, Stanley M. Burns. On April 20, 1966, Burns made a demand of payment in full on the principal, accrued interest and attorneys fees to be made on or before May 1, 1966, and in a letter dated April 25 Bowles asked for an extension of time. On April 27, 1966 Burns replied denying the request. Coleman, the guarantor, on the day after Bowles' receipt of Burns' denial presented to Burns in his office a cashier's check for $19,950 in full payment of all principal and interest due on the notes as of that date. This tender was refused by Burns on the grounds that the principal and interest tendered was not correct and that the tender did not include $5,063.66 demanded as attorneys fees. This was on May 2, 1966. On May 10, 1966 writs were brought against both Coleman and Bowles on behalf of Batchelder. Both plaintiff and defendants filed motions for summary judgment with supporting affidavits and counter-affidavits. Together with the affidavits have been filed various exhibits both of the notes and computations of payments and interest.

There is no disagreement between the parties in their affidavits as to the total of the amounts that have been paid toward all the notes and the interest on them. There was, however, a dispute between the parties as to whether or not there was due to the plaintiff on the note which was payable June 1, 1957 interest unpaid in the amount of $309.16; and, secondly, whether or not under the terms of the notes the defendants are liable for attorneys fees. The plaintiff takes the position that the Court was not in a position to decide the case upon motions for summary judgment. An examination of the various affidavits and the exhibits submitted in support of these affidavits discloses that there was no dispute on the facts as such, and that in effect the only issues to be determined were ones of law. This type...