Hughes-Johnson Co. v. Dakota Midland Hospital

• Decision Date: 14 March 1972
• Docket Number: HUGHES-JOHNSON,No. 10983,10983
• Citation: 195 N.W.2d 519,86 S.D. 361
• Parties: CO., Inc., a Corporation, Plaintiff and Respondent, v. DAKOTA MIDLAND HOSPITAL, a Corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 519

195 N.W.2d 519

86 S.D. 361

HUGHES-JOHNSON CO., Inc., a Corporation, Plaintiff and Respondent, v. DAKOTA MIDLAND HOSPITAL, a Corporation, Defendant and Appellant.

No. 10983.

Supreme Court of South Dakota.

March 14, 1972.

Maloney, Kolker, Kolker & Fritz, Aberdeen, for defendant and appellant.

Ronayne & Richards, Aberdeen, for plaintiff and respondent.

HANSON, Presiding Judge.

In this action to recover the balance alleged due on a construction contract defendant contends the trial court improperly granted summary judgment in favor of plaintiff.

The plaintiff, Hughes-Johnson Company, a contracting firm, and the defendant, Dakota Midland Hospital, are both South Dakota corporations with principal offices in the City of Aberdeen. The complaint, dated August 28, 1970, alleges, in substance, that the parties entered into a written agreement, which is attached to the complaint as Exhibit A, for the construction of a hospital building for the agreed sum of $1,051,544.60; that plaintiff performed all the services and furnished all of the labor and materials required by the contract in a satisfactory manner; and after giving defendant credit for all payments made there remains a balance of $5,000 due plaintiff. Defendant's answer generally denies the allegations of the complaint and affirmatively alleges payment of the account in full.

On October 1, 1970, after the issues were joined, plaintiff served interrogatories on defendant requesting, among other things, the time, manner, and amount of each payment claimed to have been made on the contract. After receiving defendant's response plaintiff moved the court for an order requiring more responsive answers. After a hearing this motion was granted and the court entered its order on November 10, 1970 requiring more specific and detailed answers to the interrogatories. Defendant failed or neglected to comply in any manner and plaintiff again moved the court for relief. After another hearing the court entered an order on January 27, 1971 specifically enumerating the documents and information to be furnished by defendant in order to be in compliance. Again, the answers submitted were not responsive and were not supplemented with copies of canceled checks, receipts, or other documents evidencing the time, manner, and amount of payments claimed to have been made as requested in the interrogatories and as ordered by the court.

On April 2, 1971 plaintiff moved for summary judgment. The motion was supported by the affidavit of Clarence F. Johnson, President of the Hughes-Johnson Company. The affidavit referred to the contract relating to the construction of the hospital for the agreed sum of $1,051,544.60; the satisfactory completion of all obligations thereunder. Exhibit 'B' was attached to and made a part of the affidavit by reference. It contained a detailed schedule of the time and amount of each payment made by defendant in the total amount of $1,046,544.60, leaving a balance due of $5,000. In resistance to the motion defendant filed an affidavit executed by Dennis Maloney, as its attorney and as Secretary of its Board of Trustees. Such affidavit alleged there was no proper foundation for a summary judgment as the Clarence F. Johnson affidavit was a self-serving declaration and not subject to cross-examination. The affidavit further generally alleged full payment of the contract and stated the issues in the case could not be determined without a trial. After a hearing, the trial court entered its order on April 19, 1971 granting summary judgment for plaintiff in the amount of $5,000 together with interest thereon at the rate of 6% Per annum from April 1, 1970.

According to SDCL 15--6--56(c) a summary judgment 'shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,...