Kover v. Hufsmith, No. 4030

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtGUTHRIE
Citation496 P.2d 908
Docket NumberNo. 4030
Decision Date12 May 1972
PartiesEdward E. KOVER, Appellant (Plaintiff below), v. Robert A. HUFSMITH, Appellee (Defendant below).

Page 908

496 P.2d 908
Edward E. KOVER, Appellant (Plaintiff below),
v.
Robert A. HUFSMITH, Appellee (Defendant below).
No. 4030.
Supreme Court of Wyoming.
May 12, 1972.

Page 909

Vincent A. Ross, Cheyenne, for appellant.

G. J. Cardine, of Cardine & Vlastos, Casper, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

Plaintiff below, appellant here, filed a complaint alleging that in January 1968 he had hired defendant as his attorney to perform certain services, briefly stated as follows: To receive in trust and distribute $7000 pursuant to authorization and instructions; to form a Wyoming corporation with plaintiff, his attorney, Paul Noel, and James Mercill as directors, officers, and shareholders; to secure proper execution of a contract between these three above-mentioned persons pertaining to the operation prior to the distribution of the trust funds; and to execute in recordable form, as attorney in fact for Frank Galey, a transfer of an agreement under which Mercill held the lease to certain premises to be used by the corporation. Plaintiff complained that defendant had breached this agreement by negligently failing to diligently perform his obligations and that defendant had distributed the $7000 received by him in trust without proper authorization.

Defendant answered by admitting receipt of $7250 and alleged that he retained $250 as his attorney fee and paid the balance according to instructions of the plaintiff, his agent, and employee.

The court below granted summary judgment in favor of defendant and from this ruling appellant appeals. The motion for summary judgment was based upon the affidavit of defendant to which numerous exhibits were attached, an affidavit of James Mercill, and the deposition of plaintiff. Plaintiff filed a rather lengthy affidavit of Paul Noel in opposition to the motion. No attempt will be made to summarize or detail these except insofar as they are deemed directly applicable to the question herein presented. It is not the purpose of such a motion to decide the facts but to determine if any real issue exists, Western Standard Uranium Company v. Thurston, Wyo., 355 P.2d 377, 379-380.

The affidavit of Noel directly contradicts the affidavit of defendant, appellee herein, as to a claimed authorization given by Noel as plaintiff's attorney on January 17, 1968, and appellee conceded at the time of argument that if the question of appellee's authorization were material that a conflict did exist. It is asserted that this conflict is not material because appellant later, on March 30, 1968, was notified and

Page 910

assented to all payments made by appellee, which constituted a ratification or waiver of plaintiff's present claims. Hufsmith's affidavit states that at the time of this meeting the expenditure of the sum of $7250 was discussed and that defendant...

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22 practice notes
  • Connett v. Fremont County School Dist. No. 6, Fremont County, No. 4892
    • United States
    • United States State Supreme Court of Wyoming
    • July 11, 1978
    ...of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine issues of material fact, the summary judgment should no......
  • Toltec Watershed Imp. Dist. v. Johnston, No. 85-169
    • United States
    • United States State Supreme Court of Wyoming
    • April 9, 1986
    ...would provide no support to this court's decision by any assertion that a factual dispute did not exist. Kover v. Hufsmith, Wyo., 496 P.2d 908 (1972); Corwin v. Los Angeles Newspaper Service Bureau, Inc., supra; Note, Proper and Improper Summary Judgment Cases, 12 Wyo.L.J. 289 (1957-58). Se......
  • Johnson v. Soulis, No. 4458
    • United States
    • United States State Supreme Court of Wyoming
    • November 21, 1975
    ...material fact the summary judgment should not be granted. Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350 (1974); Kover v. Hufsmith, Wyo., 496 P.2d 908 (1972); McClure v. Watson, Wyo., 490 P.2d 1059 (1971); Low v. Sanger, Wyo., 478 P.2d 60 (1970); Godard v. Ridgway, Wyo., 445 P.2d 757 (1968).......
  • Timmons v. Reed, No. 4681
    • United States
    • United States State Supreme Court of Wyoming
    • September 13, 1977
    ...of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine issues of material fact, the summary judgment should no......
  • Request a trial to view additional results
22 cases
  • Connett v. Fremont County School Dist. No. 6, Fremont County, No. 4892
    • United States
    • United States State Supreme Court of Wyoming
    • July 11, 1978
    ...of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine issues of material fact, the summary judgment should no......
  • Toltec Watershed Imp. Dist. v. Johnston, No. 85-169
    • United States
    • United States State Supreme Court of Wyoming
    • April 9, 1986
    ...would provide no support to this court's decision by any assertion that a factual dispute did not exist. Kover v. Hufsmith, Wyo., 496 P.2d 908 (1972); Corwin v. Los Angeles Newspaper Service Bureau, Inc., supra; Note, Proper and Improper Summary Judgment Cases, 12 Wyo.L.J. 289 (1957-58). Se......
  • Johnson v. Soulis, No. 4458
    • United States
    • United States State Supreme Court of Wyoming
    • November 21, 1975
    ...material fact the summary judgment should not be granted. Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350 (1974); Kover v. Hufsmith, Wyo., 496 P.2d 908 (1972); McClure v. Watson, Wyo., 490 P.2d 1059 (1971); Low v. Sanger, Wyo., 478 P.2d 60 (1970); Godard v. Ridgway, Wyo., 445 P.2d 757 (1968).......
  • Timmons v. Reed, No. 4681
    • United States
    • United States State Supreme Court of Wyoming
    • September 13, 1977
    ...of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine issues of material fact, the summary judgment should no......
  • Request a trial to view additional results

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