Federal Bldg. Service v. Mountain States Tel. & Tel. Co.
| Decision Date | 25 July 1966 |
| Docket Number | No. 7905,7905 |
| Parties | FEDERAL BUILDING SERVICE, Plaintiff-Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Thomas E. Jones, Albuquerque, for appellant.
Iden & Johnson, J. T. Paulantis, Marshall G. Martin, Albuquerque, for appellee.
A partnership doing business under the name Federal Building Service was the plaintiff in the trial court and will hereinafter be referred to as the appellant. The Mountain States Telephone and Telegraph Company is the appellee.
The appellant filed suit to recover damages, actual and exemplary, for the appellee's alleged failure to carry an advertisement in the 'Yellow Pages.' From a summary judgment comes this appeal.
The first of four points advanced by the appellant is that a motion for summary judgment is not to be considered as a substitute for a trial and should not be granted where there is a genuine issue of material fact. With that statement the appellee does not quarrel, neither do we. The contract between the parties provided that in case of error in the advertisement, or omission of the advertisement, that the liability of the company (appellee) 'in no event shall exceed the amount payable to the company for said advertisement during the service life of the directory in which the error or omission occurs.' The affidavit by the Division Directory Sales Manager for the appellee at Albuquerque, New Mexico, submitted in support of the motion for summary judgment recited that no charge was made for the advertisement for 1963. This sworn statement was not controverted. Consequently the appellee was bound by its contract to be entitled to exactly nothing. There being no genuine issue of material fact the trial court did not err in granting summary judgment. Smith v. Southern Bell Tel. & Tel. Co., 51 Tenn.App. 146, 364 S.W.2d 952.
The second point of the appellant attacks the affidavit previously referred to on the ground that the contents of the affidavit were not made on the personal knowledge of the affiant, were hearsay and consequently inadmissible. The affidavit recited that no charge was made to the plaintiff for listing in the Yellow Pages of the 1963 directory. Attached to the affidavit were copies of excerpts of the business records of the plaintiff. No objection was made to the fact that they were copies. The content of the affidavit that was material was not controverted, that is, there was no showing by the appellant that any consideration had been paid for the listing. The point is without merit.
The third point is a contention that the trial court erred in failing to file requested findings of fact. Section 21--1--1(52)(B)(...
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