MacKay v. American Potash & Chemical Co.

• Decision Date: 02 October 1959
• Docket Number: No. 16135.,16135.
• Citation: 268 F.2d 512
• Parties: W. D. MacKAY, Appellant, v. AMERICAN POTASH & CHEMICAL CO., Inc., a corporation, and Stauffer Chemical Company, a corporation, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

268 F.2d 512 (1959)

W. D. MacKAY, Appellant, v. AMERICAN POTASH & CHEMICAL CO., Inc., a corporation, and Stauffer Chemical Company, a corporation, Appellees.

No. 16135.

United States Court of Appeals Ninth Circuit.

June 29, 1959.

Rehearing Denied October 2, 1959.

W. D. MacKay, in pro. per.

Gibson, Dunn & Crutcher, Martin E. Whelan, Jr., Los Angeles, Cal., for American Potash.

Vincent H. O'Donnell, Fredrik S. Waiss, San Francisco, Cal., for Stauffer.

Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Before us for review is an appeal by plaintiff appellant from a summary judgment granted by the district court in favor of defendants appellees and entered on April 9, 1958.

Jurisdiction of the district court is based on Title 28 U.S.C., Sections 1332 and 1441. The plaintiff is a citizen and resident of the State of California, and the defendants are corporations incorporated under the laws of the State of Delaware. The amount in controversy is in excess of $3,000, exclusive of interest and costs. The jurisdiction of this Court is derived from Title 28 U.S. C. Section 1291.

The action was instituted in the Superior Court of the State of California, in and for the County of Los Angeles, on or about July 10, 1957. It was properly removed to the district court on August 2, 1957.

The complaint contains three causes of action. In the first cause of action plaintiff alleges "That on or about the fifteenth day of July, 1952, at Los Angeles, California, the plaintiff and the defendants mutually agreed that plaintiff should serve the defendants and each of them in securing natural gas service to the defendants' plants located in or about Trona, California, and that the plaintiff be compensated in a reasonable amount to be agreed upon by the plaintiff and defendants if the plaintiff secured said natural gas service," and "That thereafter on April 11, 1955, as a result of plaintiff's services and efforts, defendants made a contract with Pacific Gas & Electric Company on or about July 12, 1955, the California Public Utilities Commission approved such contract by Decision No. 51666. That thereafter, on or about October 1, 1955, Pacific Gas & Electric Company commenced delivering natural gas to defendants under such contract and the defendants and each of them ever since have received and used the benefits therefrom." It is further alleged that the plaintiff timely demanded reasonable compensation for his services from the defendants and that they refused to make payment. The second cause of action seeks a declaration of the rights and duties of the parties based upon the contract alleged in the first cause of action. The third cause of action seeks the sum of $250,000 on a common count for the services alleged in the first cause of action.

Defendants denied the making of any contract with plaintiff or the performance by plaintiff of any services for either of the defendants, but admitted the making of contracts for the supplying of natural gas service with Pacific Gas & Electric Company, but denied that plaintiff performed any service in connection therewith.

Following pretrial procedures, motions for summary judgment were filed by both defendants. After several continuances of the hearing on the motions, hearing was held resulting in the entry of summary judgment.

Appellant's specification of errors is as follows:

"1. The Court Below Erred in Granting a Summary Judgment.

"A. The Court Erred in Failing to Strike Material Portions of Affidavits in Support of the Motion for Summary Judgment.

"B. The Court Erred in Refusing to Grant a Continuance for Further Discovery Procedures.

"C. The Court Erred in Law as to the Propriety of a Summary Judgment Under the Facts in the Record.

"D. The Findings of Fact and Conclusions of Law Were Contrary to the Few Facts Developed Below.

"E. Substantial Material Issues of Fact Were Controverted and Existed and a Summary Judgment Was Improper."

We will consider together sub-titles C, D and E of the specifications of error since they all revolve around appellant's main contention that the court erred in granting summary judgment because of the claimed existence of a material issue of fact.

Defendants' motions for summary judgment were based on the contention that the contracts to supply natural gas which were entered into by defendants and Pacific Gas & Electric Company were not entered into as a result of appellant's services or efforts.

The motions were made upon the files and records, the responses of plaintiff to defendants' interrogatories, and the affidavit of Robert B. Coons, George Ellis, J. H. Guntz, W. M. Jacobs and William Spaulding.

The interrogatories were designed to elicit from plaintiff any claimed connection between him, or any activity on his part, and the obtaining by defendants of the natural gas service from Pacific Gas & Electric Company. In response to interrogatories 1 and 2, plaintiff admitted that at no time on or prior to April 11, 1955 (the date of the contracts between Pacific Gas & Electric Company and defendants under which defendants obtained natural gas service), or between April 11, 1955 and October 1, 1955 (the date said contracts were approved by the Public Utilities Commission of the State of California and the date on which natural gas service was actually started) did he have any contact of any kind with any officer, agent or employee of Pacific Gas & Electric Company in any way relating to the furnishing of natural gas service to the area of Trona, California, or to any plant of either defendant in that area.

By interrogatories 3 and 4, plaintiff was asked as to his personal knowledge, and as to his information other than personal knowledge, of any person (other than the officers or employees of defendants and Pacific Gas & Electric Company) who had anything to do with interesting Pacific Gas & Electric Company in furnishing natural gas service to the Trona area or to either of the defendants' plants in that area. The only persons listed by plaintiff in response to such interrogatories are Howard L. Minister and Clarence L. Alliman, both connected with the 11th Naval District, San Diego, California, who plaintiff stated met with representatives of Pacific Gas & Electric Company in 1951 and 1952, inquiring as to the availability of natural gas to the United States Naval Ordnance Depot, China Lake, California.

By interrogatories 5 and 6, plaintiff was asked as to his activity in connection with the approval of the contracts by the Public Utilities Commission of the State of California. Plaintiff stated that he did not participate in the hearing, nor does he recall any communication with anyone connected with the Commission with reference to the furnishing of natural gas to the Trona area or to defendants' plants. If he had any such communication it had no relationship to any attempt to obtain Commission approval.

The affidavits filed in support of defendants' motions, except the affidavit of William Spaulding, are by officers and employees of Pacific Gas & Electric Company, the defendants, and Southern California Gas Company. The plaintiff filed a motion to strike certain affidavits or, in the alternative, specified portions thereof, on the grounds that the affidavits failed to conform to the requirements of Rule 56(e), Federal Rules of Civil Procedure, 28 U.S.C., in that the portion sought to be stricken consisted of hearsay, immaterial and conclusionary matters. There is nothing in the record to indicate the district judge ruled on the motion. The failure of the court to rule on the motion, if error, is harmless since the affidavits are merely cumulative to and confirmatory of plaintiff's responses to the interrogatories, that he did not have any contact of any kind with any officer, agent or employee of Pacific Gas & Electric Company in any way relating to the furnishing by said company of natural gas service to the defendants.

The affidavit of William Spaulding consists of portions of the deposition of plaintiff under oath, taken by defendant American Potash & Chemical Co., pursuant to an application to perpetuate testimony, a proceeding in the Superior Court of the State of California in and for the County of Los Angeles. The application to perpetuate testimony and plaintiff's deposition were taken as a result of a claim of plaintiff which was substantially the same as the allegations contained in plaintiff's complaint in this case. While plaintiff objected to the use of the portions of the deposition contained in the affidavit, we find no merit to the objections. Clearly, admissions of a party relating to a material issue made under oath in deposition form may be considered in passing upon the motion for a summary judgment. It is clear from the answers given by plaintiff that he was to receive no compensation unless his efforts procured natural gas service for the defendants from the Pacific Gas & Electric Company.

In opposition to the defendants' motion for summary judgment plaintiff filed only his own affidavit, which in pertinent parts states:

"That he demonstrated the feasibility and desirability of gas service to the subject defendants\' to the representatives of the Southern California Gas Company in the fall of 1952. That

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