Fay Smith & Associates, Inc. v. Consumers Public Power Dist.
| Decision Date | 10 November 1961 |
| Docket Number | No. 35034,35034 |
| Citation | 111 N.W.2d 451,172 Neb. 681 |
| Parties | FAY SMITH & ASSOCIATES, INC., a corporation, Appellant, v. CONSUMERS PUBLIC POWER DISTRICT, a corporation, Appellee. |
| Court | Nebraska Supreme Court |
1. In considering a motion for summary judgment the court should view the evidence bearing on the question of whether or not there is a genuine issue of material fact in the light most favorable to the party against whom it is directed.
2. In order for the movant to obtain a summary judgment it must be shown first, that there is no genuine issue as to any material fact in the case and, second, that movant is entitled to a judgment as a matter of law.
3. Summary judgment is effective and serves a separate useful purposes only when it can be used to pierce the allegations of the pleadings and show conclusively that the controlling facts are otherwise than as alleged.
4. The evidence offered on a motion for summary judgment is for the purpose of showing that no issue of fact exists, not to try issues on pleadings, depositions, and affidavits which constitute only a part of the evidence available on a trial on the merits.
Cassem, Tierney, Adams & Henatsch, Omaha, for appellant.
Healey, Wilson & Barlow, Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action at law wherein Fay Smith & Associates, Inc., a corporation, is plaintiff and appellant, and Consumers Public Power District, a corporation, is defendant and appellee. The action was commenced in the district court for Lancaster County. After some preliminary proceedings on a petition and an amended petition over a period of more than 2 years, plaintiff filed a second amended petition. Shortly thereafter, defendant filed a motion for summary judgment, with a supporting affidavit. No pleadings had been filed in the case by the defendant other than motions. The deposition of plaintiff's president, which defendant had taken over 2 years previously, was on file. The plaintiff filed no affidavit, and the affidavit filed by the defendant with its motion for summary judgment was restricted to identifying and offering two letters between the parties which were referred to in the deposition.
After argument, the motion for summary judgment was sustained, and the plaintiff's action dismissed. Plaintiff filed a motion for new trial which was overruled, and the plaintiff perfected its appeal to this court.
Plaintiff assigns as error the sustaining of defendant's motion for summary judgment and the overruling of plaintiff's motion for new trial.
The motion for summary judgment was submitted to the trial court on the deposition of the plaintiff's president; the second amended petition with attached exhibits, consisting of an unsigned contract and a letter from plaintiff's president dated May 17, 1954; and two letters, one from plaintiff's president dated May 24, 1954, and the other from defendant's general manager dated June 4, 1954, both of which were supplied by the affidavit of defendant's general manager.
In Wolf v. Tastee Freez Corp., 172 Neb. 430, 109 N.W.2d 733, 734, we said: 'In considering a motion for summary judgment the court should view the evidence in the light most favorable to the party against whom it is directed.'
We now review the second amended petition, the deposition, and the letters in the light of the above rule, and state conclusions which we feel could reasonably be drawn to sustain plaintiff's claim.
Plaintiff is a firm of consulting engineers. Plaintiff and defendant were in the process of developing a contract for architectural services in the construction of a steam generating plant between Lincoln and Beatrice when the Custer Public Power District sued to stop the project. A contract satisfactory to both parties had been developed but had not yet been signed. This contract is attached to and made a part of plaintiff's second amended petition. Shortly after the suit was filed by the Custer Public Power District, the plaintiff was approached by representatives of defendant about doing preliminary work pending the litigation, which both parties assumed would be terminated successfully although there would be a delay of several months. In response to these inquiries, the plaintiff offered to start work immediately and tendered the services of plaintiff's three executives for a nominal hourly charge for the services to be rendered by them. Plaintiff alleges, however, this charge was conditional and that if defendant prevailed in the litigation and went ahead with the project, the work done by its executives would then be compensated on the basis set forth in the unsigned constract, allowing credit for the amount paid. The defendant accepted the proposal and plaintiff did the preliminary work for which it was paid $12,854.17. Plaintiff alleges its proposal was made in its letter to the defendant dated May 17, 1954, and amplified in its letter of May 24, 1954; and that the defendant accepted the offer in its letter of June 4, 1954.
The letter of May 17, 1954, to defendant is as follows:
'Enclosed herewith is an outline of recommended procedure in plant design.
'Due to recent developments in connection with providing additional capacity for your eastern division, we wish to propose the following plan under which a considerable portion of preliminary design work can be completed.
'When present uncertainties in connection with proposed work are removed and if Consumers proceed with proposed construction, the amounts paid to our organization for the services of Smith, Mann, and Lyle would be considered as payments on account of the basic fee in our main contract.
'Would like to discuss this with you in Columbus later this week but will call you for an appointment.'
The letter of May 24, 1954, to defendant is as follows:
'This letter will confirm our discussion of May 21 regarding preliminary engineering work in connection with your proposed power plant to be located in the Lincoln-Beatrice area.
'We will proceed at once assembling necessary information which will be required to enable us to make heat balance studies, and when these studies are approved by your organization, we will be in a position to promptly ask for bids on major equipment items.
'We will also proceed with surveys in connection with the selection of the plant site. This work will cover the assembly of information relating to rail lines, gas lines, water conditions and available sub-surface information and the planning of any sub-surface explorations which might be required when construction is undertaken.
'Mr. Lyle and an assistant will be responsible for the survey for the site, and Mr. Mann will proceed with the preliminary studies in connection with the plant. He will work with Mr. Venable and his assistant in assembling required information as to the prospective loads and load duration curves under which the plant will operate.
'It is expected that within 3 or 4 weeks he will be in a position to proceed with that balance studies at which time we would employ Mr. John Peterson who worked with him in North Omaha.
'We would bill you for the services of the men for actual time spent on the work at the following rates:
"Mr. F. E. Smith $4.50 per hour
Mr. Robert Mann 4.50 per hour
Mr. Hayes Lyle 4.50 per hour
Mr. John Peterson 3.50 per hour
Mr. J. H. Smith 2.50 per hour
It is not expected that Mr. F. E. Smith will spend much time in connection with your work until his study in connection with Lincoln is completed.
'We have some small jobs in our office at the present time and estimate that not more than 75% of the time will be spent on your job.
'We estimate that our billings to you would not exceed $10,000 through the month of August.
'We propose to work closely with and under the direction of your organization during this preliminary period and assure you that such work will save valuable time in enabling us to get construction started promptly when present uncertainties are removed.'
The letter of June 4, 1954, from defendant to plaintiff is as follows:
'Subject: Preliminary Engineering Work
'This letter will confirm discussions with you relative to the firm of Fay E. Smith and Associates proceeding with preliminary engineering work on the proposed power plant for the Consolidated Eastern...
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