Luders v. Pummer

• Citation: 152 Cal.App.2d 276,313 P.2d 38
• Court: California Court of Appeals
• Decision Date: 03 July 1957
• Parties: Erna E. LUDERS, Plaintiff and Respondent, v. Emilie M. PUMMER, Defendant and Appellant. Civ. 22146.

Page 38

313 P.2d 38

152 Cal.App.2d 276

Erna E. LUDERS, Plaintiff and Respondent, v. Emilie M. PUMMER, Defendant and Appellant.

Civ. 22146.

District Court of Appeal, Second District, Division 2, California.

July 3, 1957.

Rehearing Denied July 26, 1957.

Milton L. Most, Los Angeles, for appellant.

Eric A. Rose and Albert D. White, Long Beach, for respondent.

FOX, Justice.

This is an appeal by defendant from a summary judgment.

Plaintiff brought this action to recover on a promissory note in favor of Harry Luders, plaintiff's husband, for $3,000 executed by defendant in May, 1955. In June, the payee, Harry Luders, assigned the note to himself and his wife, plaintiff herein, as joint tenants. In the following November, Harry Luders passed away and plaintiff thereupon became vested with title to said note. She filed suit on the note on April 5, 1956.

Defendant answered, setting up a counterclaim consisting of two items: (1) a promissory note for $1,000 dated July 5, 1952, executed by Harry Luders (and his former wife, Leona) in favor of Rudolf Pummer, husband of defendant; and (2) an agreement dated September 26, 1952, between Harry Luders and Rudolf Pummer, by which, inter alia, it is alleged that Luders agreed to pay Rudolf Pummer $2,500. Defendant alleged that on April 12, 1956, her husband, Rudolf, assigned the aforesaid note and the agreement to her, and that no payments had been made upon either of these obligations. She thus sought to offset these items against the note on which plaintiff sued. In this connection it should be noted that there is no contention that plaintiff is a holder in due course of the note.

Plaintiff made a motion for summary judgment, supporting it by her affidavit to which was attached a copy of the note showing the assignment to her and her late husband as joint tenants, and further stating that he had passed on and that she thereby became the owner of the note.

Defendant and her husband Rudolf filed a joint affidavit in opposition to the motion. This affidavit asserted that Harry Luders, plaintiff's husband, was indebted to Rudolf Pummer, defendant's husband, in a substantial amount; also, that Harry Luders had loaned defendant $3,000 to apply on the purchase of a home. The affidavit further states that 'Prior to May 23, 1955, affiants [the Pummers] agreed between themselves that any and all of the debts and obligations owed to Rudolf L. Pummer by Harry Luders would be their community property * * *.' Defendant bases her counterclaim on her asserted community interest in these obligations and by reason of Rudolf's assignment of his interest in them to her under date of April 12, 1956, which was seven days after plaintiff filed suit on the $3,000 note executed by defendant.

The trial court disallowed the counterclaim in its entirety, and accordingly rendered a summary judgment in plaintiff's favor for the amount of the note, interest and attorneys' fees.

The propriety of granting or denying a motion for summary judgment depends upon the affidavits that are filed. Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464; Kimber v. Jones, 122 Cal.App.2d 914, 918, 265 P.2d 922; Poochigian v. Layne, 120 Cal.App.2d 757, 760, 261 P.2d 738; McComsey v. Leaf, 36 Cal.App.2d 132, 133, 97 P.2d 242.

'Thus, in passing upon a motion for summary judgment, the primary duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it is then powerless to proceed further,' but must allow such issue to be tried in the usual way. 'By an unbroken line of decision in this state * * * the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns.' Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62, 64. It is also pertinent to note that 'it is well settled that property may be converted into community property at any time by oral agreement between the spouses. * * *' Tomaier v. Tomaier, 23 Cal.2d 754, 757-758, 146 P.2d 905, 907. Section 368, Code of Civil Procedure, provides in part: 'In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off, * * * existing at the time of, or before, notice of the assignment; * * *.' The decisions under this section hold that the maker of a nonnegotiable instrument which has been assigned by the payee to a third person may set off against such note an obligation of the payee which the maker has procured before notice of the assignment of the note. St. Louis National Bank v. Gay, 101 Cal. 286, 289, 35 P. 876; Harrison v. Adams, 20 Cal.2d 646, 649, 128 P.2d 9; Highsmith v. Lair, 44 Cal.2d 298, 303, 281 P.2d 865, 868. As stated in the last cited case, '[T]here is no room for the exercise of discretion upon the question. [Citations.] Actual notice is necessary to defeat this right.' 'The application of these principles makes it clear that the judgment must be reversed.

By the affidavit of the defendant and her husband, defendant raised a material factual issue relative to her community interest in the note and agreement which plaintiff's assignor had executed in favor of Rudolf. The affidavit was sufficient to make a prima facie showing of her asserted community interest in these obligations. Tomaier v. Tomaier, supra. The materiality of this issue is established by the provisions of section 368, Code of Civil Procedure, and the cases construing it cited supra, to the effect that an 'action by the...