Kover v. Hufsmith
| Decision Date | 12 May 1972 |
| Docket Number | No. 4030,4030 |
| Citation | 496 P.2d 908 |
| Parties | Edward E. KOVER, Appellant (Plaintiff below), v. Robert A. HUFSMITH, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
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.
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 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 was duly and completely informed of the final payment on the Cat-A-Gator, a snow machine to be used in the operation, and the amount and purpose of each expenditure and approval of the same.
Noel, who was present at the March meeting, by his affidavit asserts that affiant and Kover were not informed as to the exact manner in which Defendant distributed the $7,250.00 until after affiant and Kover rescinded and requested Defendant to return the $7,250.00.' He further denies the articles of incorporation for the proposed corporation were drawn until after rescission, which creates a conflict. Reliance is placed upon the deposition of plaintiff wherein he states he knew the money had been spent prior to the meeting, which is the first time he had ever seen or talked to defendant, and even then he was ready to proceed conditionally. The running theme of the deposition is that he wanted to get 'the show on the road.' This could well be, and we think the inference is available from reading the entire deposition that plaintiff meant completion of the corporate structure and proper assignment of the property, including the agreement under which Mercill held the premises on which would be located the proposed operation, and transfer of the operating equipment. No place in the deposition does he state or admit that the separate items of expenditure were ever stated or explained to him.
Defendant in a matter of this character has a definite burden to clearly demonstrate there is no genuine issue of material fact, Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792, 485 P.2d 1019, appeal dismissed 404 U.S. 931, 92 S.Ct. 282, 30...
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