Monroe Cnty. Fin. Co. v. Thomas
| Decision Date | 12 October 1943 |
| Parties | MONROE COUNTY FINANCE CO. v. THOMAS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Vernon County; R. S. Cowie, Circuit Judge.
Affirmed.
This action was begun on November 6, 1942, by Monroe County Finance Company, plaintiff, against Fred B. Thomas, defendant, to recover damages for a breach of contract. There was motion for summary judgment and upon hearing the trial court directed judgment for $336.24 damages and costs of the action taxed at $54.65, in all the sum of $390.89, from which judgment entered on March 1, 1943, the defendant appeals.
The facts will be stated in the opinion.
Harry T. Jordan, of Hillsboro, for appellant.
J. Henry Bennett and Olga Bennett, both of Viroqua, for respondent.
On the 28th day of October, 1942, the plaintiff entered into a contract with the defendant whereby the plaintiff agreed to conduct an auction on the defendant's farm on the 7th day of November, 1942. By the terms of the contract the plaintiff was (1) to provide the party of the second part with 250 sale bills and newspaper and radio advertisement as therein specified; (2) to pay all charges of the auctioneer, who was to be selected by the party of the second part; (3) to provide a competent clerk for said sale without charge to the party of the second part; (4) the defendant was to pay the party of the first part 7% of the total amount of the sale if the gross amount exceeded $1,000.
Later by stipulation the total amount of the sale was fixed at $4,803.42, 7% of that amount being $336.24.
There was an affidavit by the attorney for the plaintiff in support of the motion for summary judgment. The defendant answered and also filed an affidavit in opposition to the plaintiff's motion for summary judgment. Upon a hearing the court entered judgment for the stipulated amount from which the defendant appeals.
The facts in this case are practically undisputed. The controversy arises over the inferences and conclusions which should be drawn therefrom. The contract was entered into on October 28, 1942. It appears from the answer that the defendant at some time prior to the 28th day of October had entered into a contract with the Thorp Finance Corporation to advertise and conduct a sale of his personal property, that he sought to be released therefrom; that the Thorp Finance Corporation refused to release him and that on the 30th day of October, 1942, the defendant notified the plaintiff that he would not permit the plaintiff to conduct the sale.
It further appears that the plaintiff on the 7th day of November went to the defendant's farm prepared to conduct the sale. The defendant refused to let the plaintiff conduct the sale and the sale was in fact conducted by the Thorp Company.
The defendant contends that the affidavit upon which the motion for summary judgment was based was improperly received because made by the attorneys for the plaintiff instead of by the plaintiff. The plaintiff in this case is a corporation. From this fact it follows that the affidavit must necessarily be made by some one in its behalf. While it is true that the affidavit contains no statement that the plaintiff had personal knowledge of the facts, it is apparent from the nature of the facts stated that the facts were not within the knowledge of any one person. However that may be, there is no substantial conflict as to the facts of the case. The complaint was verified by an officer of the...
To continue reading
Request your trial
-
Sprecher v. Weston's Bar, Inc.
...116 N.W.2d 246 (1962); Thurner Heat Treating Co. v. Memco, Inc., 252 Wis. 16, 26, 30 N.W.2d 228 (1947); Monroe County Finance Co. v. Thomas, 243 Wis. 568, 571, 11 N.W.2d 190 (1943); Winkler v. Racine Wagon & Carriage Co., 99 Wis. 184, 188, 74 N.W. 793 (1898). While the "duty" to mitigate da......
-
Newhouse v. Citizens Sec. Mut. Ins. Co.
...harm that a plaintiff should have foreseen and could have avoided without undue expense or humiliation. Monroe Cty. Finance Co. v. Thomas, 243 Wis. 568, 571, 11 N.W.2d 190, 192 (1943), citing Restatement of the Law of Contracts § 336. The defendant has the burden of pleading and proving fai......
-
Kroske v. Anaconda Am. Brass Co.
...is a corporate entity. Clark v. London & Lancashire Indemnity Co. (1963), 21 Wis.2d 268, 124 N.W.2d 29; Monroe County Finance Co. v. Thomas (1943), 243 Wis. 568, 11 N.W.2d 190. Although Younger v. Rosenow Paper & Supply Co., supra, does mention that affidavits by counsel are ineffective eve......
-
Clark v. London & Lancashire Indem. Co. of America
...is a corporation which can only act, speak and aver through its agents. This distinction was recognized in Monroe County Finance Co. v. Thomas (1943), 243 Wis. 568, 11 N.W.2d 190, which held that such an affidavit by counsel for a corporate party was sufficient to support a motion for summa......