Kimber v. Jones

Decision Date29 January 1954
Citation265 P.2d 922,122 Cal.App.2d 914
PartiesKIMBER v. JONES et al. Civ. 19967.
CourtCalifornia Court of Appeals Court of Appeals

Laurence Phillips and Robert P. Schifferman, Los Angeles, for appellant.

Daniels, Elson & Mathews, and William A Sherwin, Los Angeles, for respondent.

FOX, Justice.

Defendant appeals from a summary judgment in an action on a promissory note.

On November 25, 1952, plaintiff, Don C. Kimber, filed a complaint alleging that he was the assignee and lawful holder of a promissory note executed by defendant Nelson E. Jones in the sum of $12,214.81, running in favor of Lee P. Hill, plaintiff's assignor. A copy of this note, dated June 15, 1952, and maturing in 90 days, was attached to the complaint. It is alleged that payment has been made on the note in the amount of $6,714.18, leaving an unpaid balance of $5,500. Plaintiff prayed judgment in this amount and for attorney's fees as provided by the note in event of suit.

The answer denied that there was any balance unpaid on the note, and also denied, for want of information and belief, that plaintiff was the assignee and lawful holder of the note. As an affirmative defense, defendant set up a partial failure of consideration. Defendant alleged thereunder that by virtue of fraudulent misrepresentations as to the quality of certain lumber belonging to Lee P. Hill, made by Robert Creelman, Hill's agent, namely that it was Number One common and better, defendant was induced to purchase said lumber, in party payment of which transaction he had executed the promissory note running to Hill. He alleged that Hill and Creelman knew that 'approximately one-half thereof was of a grade poorer and less valuable than Number One common grade or better.'

Thereafter plaintiff moved for summary judgment on the ground that defendant's defense of failure of consideration was without merit and spurious. In support thereof, he filed three affidavits executed by Robert Creelman, Lee P. Hill and James Ramsdell, Hill's attorney, together with documents which were appended to each affidavit. Creelman's affidavit was essentially to the effect that he represented that the 140,000 feet of lumber which was delivered by Hill to Jones would be 'Grade 2 common, and better.' Concomitant with this transaction, Creelman states he made certain business arrangements with defendant, pursuant to which he became employed by defendant Jones as sales manager of the latter's company. There is attached a certificate of inspection issued at the shipping point covering 25,000 feet of the lumber, which Creelman avers was delivered to defendant, and asserts that similar certificates for the balance of the lumber were also issued and delivered to defendant. The attached inspection certificate indicates that some of the lumber was classified a Number Two common, and a part was number One common. The affidavit also states that an inspection at destination was made by one E. L. Primm, confirming the shipment to be grade 2 and better, and copies of Primm's reports were sent to Jones, who also personally inspected at least one carload. Creelman asserts that defendant informed him that if Hill failed to extend the time due for payment on the promissory note and initiated legal action to collect on it, he would 'stall' the case for over a year, put up an attachment bond, and appeal from any judgment rendered on the note.

The affidavits of Hill and Ramsdell attach as exhibits a total of 12 letters exchanged between Jones and themselves over the period May to November, 1952. For reasons which will subsequently appear, it is unnecessary to elaborate in full detail the contents of this correspondence, which defendant does not deny passed between the persons designated. It is sufficient to indicate that during the six months following the sale of the lumber, at no time in his letters does defendant suggest there was any misrepresentation, though on one occasion he wrote that the lumber was of 'very low grade.' His letters offer excuses for nonpayment of the note, ask for an extension of time for payment, and contain an offer to renew the original note by the execution of two new ones. Upon receiving notification of Hill's unwillingness either to extend the time of payment or to agree to a compromise suggested by defendant, and of Hill's intention to take legal action if full payment were not made, defendant wrote on November 10, 1952, that he would invite a suit though 'we appreciate the fact that we have no material defense to an action and all we can hope to do is to delay Hill's receipt of payment for a year or so.'

Hill's affidavit also contains as an exhibit a photostatic copy of the promissory note, and it is averred that he is the assignor of the note which is the foundation of this suit. He asserts he had no part in the negotiations between Jones and Creelman for the sale of lumber which was effectuated in connection with a deal whereby Creelman went to work for defendant's company.

In opposition to the motion made by plaintiff, affidavits were filed by L. B. Krohn, Jack Cline, and defendant. The Krohn affidavit is to the effect that Krohn was present during conversations between Creelman and Jones relating to the purchase of the lumber in question, during which time affiant heard the repeated statements made by Creelman to Jones to the effect that the said lumber was number One common lumber, and that the discussions of the price to be paid by Jones to Hill were based on a Number One common or better quality. Cline avers in his affidavit that as defendant's employee, he handled the lumber in question, which was stored on the premises of the Fern Trucking Company; that of 140,000 board-feet of lumber approximately 30,000 board-feet remains unsold; that from his observation approximately 40 percent of the total of said lumber is below the grade of Number One common; that the best prices obtainable for said lumber have been far below the current price in the Los Angeles market for Number One common and better, 'and that the remaining 30,000 board-feet thereof can be sold only at prices far below the current market price for Number One common and better and below the price paid...

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    • United States
    • California Court of Appeals
    • March 25, 1986
    ...no facts other than those which were before the lower court; '[w]e are limited to the facts shown by the affidavits (Kimber v. Jones, supra, 122 Cal.App.2d 914 ), and are to determine only whether the facts so shown give rise to a triable issue (Coyne v. Krempels, supra, 36 Cal.2d 257 .)' (......
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    ...purpose of remedying a failure to state facts in an affidavit. (Coyne v. Krempels, 36 Cal.2d 257, 263, 223 P.2d 244; Kimber v. Jones, 122 Cal.App.2d 914, 918, 265 P.2d 922; Vallejo v. Montebello Sewer Co., Inc., 209 Cal.App.2d 721, 734-735, 26 Cal.Rptr. 447.) The complete insufficiency of t......
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    ...in movant's favor. (Gardenswartz v. Equitable etc. Soc. (1937) 23 Cal.App.2d Supp. 745, 751, 753-754, 68 P.2d 322; Kimber v. Jones (1954) 122 Cal.App.2d 914, 919, 265 P.2d 922; Rowland v. Christian "When a summary judgment motion prima facie justifies a judgment, the third and final step is......
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    ...no facts other than those which were before the lower court; 'We are limited to the facts shown by the affidavits (Kimber v. Jones, supra, 122 Cal.App.2d 914, 265 P.2d 922), and are to determine only whether the facts so shown give rise to a triable issue (Coyne v. Krempels, supra, 36 Cal.2......
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