Mecham v. Colby

• Decision Date: 02 January 1953
• Docket Number: No. 33221,33221
• Citation: 56 N.W.2d 299,156 Neb. 386
• Parties: MECHAM v. COLBY.
• Court: Nebraska Supreme Court

Page 299

56 N.W.2d 299

156 Neb. 386

MECHAM v. COLBY.

No. 33221.

Supreme Court of Nebraska.

Jan. 2, 1953.

Syllabus by the Court.

1. The summary judgment act, sections 25-1330 to 25-1336, R.S.Supp., 1951, authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is clear what the truth is, and that no genuine issue remains for trial. The purpose of the statute is not to cut litigants off from their right of trial by jury if they really have issues to try.

2. In considering a motion for summary judgment the court should view the evidence in the light most favorable to the party against whom it is directed.

3. The court examines the evidence on motion for summary judgment, not to decide any issue of fact presented, but to discover if any real issue of fact exists.

4. The burden is upon the party moving for summary judgment to show that no issue of fact exists, and unless he can conclusively do so the motion must be overruled.

5. When the provisions of a contract together with the facts and circumstances that aid in ascertaining the intent of the parties thereto are not in dispute, the proper construction of such contract is a question of law.

Floersch & Floersch, Omaha, for appellant.

Mecham, Stoehr, Moore, Mecham & Hills, Omaha, for appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action brought in the district court for Douglas County by Geo. N. Mecham as plaintiff against Jessie Beard Colby as defendant to recover for legal services rendered the defendant.

The plaintiff's petition, insofar as necessary to consider here, alleged his employment as counsel for the defendant to protect her interest as principal beneficiary under her brother's will and any claim she might have against the Beard Wall Paper & Paint, Inc. The petition detailed the legal services rendered by the plaintiff for the defendant and the results obtained for defendant's benefit by virtue of such services; alleged that on December 13, 1946, the plaintiff rendered a bill for professional services to the defendant which was approved by her in writing and which she agreed to pay, in the amount of $2,000; and prayed judgment in the amount of $2,000 and costs expended.

The defendant's answer denied generally the allegations of the plaintiff's petition; set out facts that the legal services rendered by the plaintiff in behalf of the defendant were detrimental to her best interests; that the defendant was the principal beneficiary under the will of her brother Robert N. Beard, deceased, and by virtue of such fact had a claim against the Beard Wall Paper & Paint Company, Inc.; that the amount claimed by the plaintiff for legal services rendered the defendant is excessive and not the fair and reasonable value of said services; discloses the defendant approved the statement rendered by the plaintiff in the amount of $2,000 for services rendered and admits that she signed it; and prayed for dismissal of the plaintiff's petition and for recovery of costs expended in this action.

The factual particulars set forth in the pleadings will be more fully covered in a resume of the facts appearing in the opinion.

The plaintiff did not file a reply to the defendant's answer, but filed a motion to enter judgment in behalf of the plaintiff in the amount of $2,000 with interest thereon at the legal rate from December 13, 1946, and costs in accordance with sections 25-1330 to 1336, R.S.Supp., 1951. The motion for summary judgment was sustained, and judgment was entered in favor of the plaintiff in the amount of $2,000, interest, and costs in the amount of $60.45.

The defendant filed a motion for new trial which was overruled and defendant perfected appeal to this court.

For convenience we will refer to the parties as designated in the district court, Geo. N. Mecham as plaintiff, and Jessie Beard Colby as defendant.

We deem it advisable at this time to set forth certain statutory provisions of the summary judgment act and its effect.

Section 25-1330, R.S.Supp., 1951, provides: 'A party seeking to recover in district court upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the filing of answer or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.'

Section 25-1332, R.S.Supp., 1951, provides in part as follows: 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

The foregoing statute is patterned after Rule 56 of the Federal Rules of Civil Procedure. See 28 U.S.C.A., Federal Rules of Civil Procedure, Rule 56, p. 153.

In considering a motion for a summary judgment the court should view the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may be reasonably drawn therefrom. See, Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244; Dennis v. Berens, 156 Neb. 41, 54 N.W.2d 259; Ramsouer v. Midland Valley R. R. Co., 8 Cir., 135 F.2d 101; Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881.

The court examines the evidence on motion for summary judgment, not to decide any issue of fact presented in the case, but to discover if any real issue of facts exists. See, Dennis v. Berens, supra; Sprague v. Vogt, 8 Cir., 150 F.2d 795. In other words, the court can merely determine that an issue of fact does or does not exist. If such an issue does exist, the summary judgment act has no application; if such issue does not exist, a motion for a summary judgment affords a proper remedy. The evidence offered in support of the motion is for the purpose of showing that no issue of fact exists, not to try issues on pleadings, depositions, admissions, and affidavits which constitute only a part of the evidence available on a trial on the merits. The burden is upon the moving party to show that no issue of fact exists, and unless he can conclusively do so the motion for summary judgment must be overruled. See, Illian v. McManaman, supra; Dennis v. Berens, supra, and cases cited therein.

With the foregoing rules in mind we proceed to a determination of this appeal and the depositions and affidavits on file which in substance disclose the following: The Beard Wall Paper & Paint Company, Inc., was incorporated in 1917. We will refer to it as the corporation. Robert N. Beard, the brother of the defendant Jessie Beard Colby, was president of the corporation, the manager thereof, and held the controlling number of shares of stock therein. For convenience we will refer to Robert N. Beard as Beard.

It appears there were 300 shares of common stock outstanding, of which Beard owned 185 shares. Prior to 1939, and at that time, the corporation was in financial straits and operated at a loss. On November 8, 1939, an agreement was entered into by the corporation with three of its principal creditors by the terms of which a creditors' committee was formed to take over, manage, and have exclusive control of the business for the benefit of such creditors and other creditors of the corporation. The purpose of the agreement was to endeavor to pay the creditors and put the business on a profitable basis. The affairs of the corporation were complicated by the fact that Beard had been borrowing and using corporate funds for his own personal use, which appeared on the books of the corporation. On October 20, 1941, Beard died. At that time he owed the corporation $14,737.24, with interest in the amount of $7,342.33, making a total indebtedness to the corporation of $22,079.57, no part of which had been paid. At the time of Beard's death there were 300 shares of common stock of the corporation outstanding, of which he owned 185 shares. There was also preferred stock owned by another party. The indebtedness of the corporation at the time of Beard's death was $53,634.21. There was a life insurance policy on Beard's life in the amount of $32,000, the three principal creditors being the beneficiaries of the policy. This was applied on the corporation's outstanding indebtedness. The indebtedness of the corporation on current accounts as of the date of January 31, 1942, was $41,587.34. Had there been liquidation of the corporation at the time of Beard's death, the assets of the same would have been insufficient to pay the entire outstanding indebtedness. The common stock of the corporation had little or no value.

On December 17, 1941, the defendant went to the plaintiff's office and employed him to represent her as her attorney with reference to the estate of her brother. She was the principal beneficiary under his will and would inherit the 185 shares of common stock in the corporation owned by him. By virtue of such fact she contended she had a claim against the corporation, and the plaintiff was instructed to protect her interests.

According to the defendant's deposition, the corporation was in financial straits in 1939. It had bought too heavily and was unable to sell its merchandise during the hard times and the crop failures; business dropped off and it was overstocked. The plaintiff agreed to act as the defendant's attorney to protect her interests in the estate of her brother and any claim she might have against the corporation. Thereafter the plaintiff had several conferences with the defendant and the officers of the creditors' committee, and corresponded with numerous individuals to ascertain the value of the common stock of the corporation, its indebtedness, and financial condition.

In April 1945, the Beard Wall Paper & Paint Company, Inc., as an alleged bona...