Mooser v. Mason
| Decision Date | 16 June 1967 |
| Citation | 416 S.W.2d 355 |
| Parties | Charles MOOSER and Margaret Mooser, Appellants, v. W. T. MASON, d/b/a Mason Realty Company, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Charles B. Zirkle, William J. Francis, Louisville, for appellants.
Roger L. Wiedeback, Louisville, for appellee.
A summary judgment for $6,056.39 was entered for plaintiff, now appellee Mason, in his suit against appellants for 5 percent commission on a build and lease arrangement on property of appellants located on Preston Highway in Louisville, Kentucky. This appeal followed.
Appellants contend there were genuine issues of material facts in issue and that summary judgment was inappropriate.
By the terms of the contract appellee agreed:
(1) 'To negotiate and secure a leasehold arrangement with Burger Queen of Louisville, Inc.
(2) 'To obtain financing of improvements to be placed on tract pursuant to proposed lease.
(3) 'To generally supervise for the second parties the construction of improvements as required by the lease * * *.'
Appellee admittedly performed the first obligation of the above contract. He contends he also performed the second and third obligations in the manner contemplated by the contract, but appellants vigorously deny he did so. Herein arises the controversy.
The main storm of controversy rages around the issue as to the amount of financing appellee agreed to 'obtain' and the extent of his duty to 'obtain' financing. Appellants charge in their counterclaim that appellee failed to 'generally supervise' the construction of improvements, but this issue occupies a minor place in the arguments. The counterclaim was dismissed by the judgment.
Appellants argue $62,226 was required for the improvements, which amount included the cost of filling the lot. Appellee counters by saying the cost of the improvements was only $48,870, that he 'obtained' a loan of $38,200 and was instrumental in obtaining another net loan of $12,500, making a total more than sufficient to cover the cost of improvements.
The evidence does not disclose the amount of the cost of filling the lot. Other property of appellants was also filled under the same contract, and the amount attributable to the lot in question is not clear.
The trial court concluded it had 'no cup by which to measure the amount of aid he (appellee) should have given, because the contract is not definite on that point.' We find there is nothing indefinite in the phrase, 'to obtain financing of improvements.' The contract does not require appellee to try, to do his best, or to exert reasonable efforts to obtain financing. It simply obligates appellee to 'obtain' financing. Of course the amount of financing is not stated in the contract for the simple reason the parties did not then know the amount necessary for improvements. This obviously is a question of proof.
The procedure for summary judgment under CR 56.01 is a handy tool for the bench and bar alike, but the procedure is a drastic one and should not be invoked where a genuine issue of a material fact is involved. Cf. Conley v. Hall, Ky., 395...
To continue reading
Request your trial
-
Burningham v. Ott, 13522
...Corp., App., 166 So.2d 155; Illinois: Brooks v. Dean Berenz Asphalt Co., 33 Ill.App.2d 258, 227 N.E.2d 100; Kentucky: Mooser v. Mason Realty Co., 416 S.W.2d 355; Missouri: Pitman Mfg. Co. v. Centropolis Transfer Co., 461 S.W.2d 866; New York: Horn v. Ketchum, 225 N.Y.S.2d 571; Rhode Island:......
-
Totten v. Parker
...Robert Simmons Construction Company v. Powers Regulator Company, Ky., 390 S.W.2d 901; Conley v. Hall, Ky., 395 S.W.2d 575; Mooser v. Mason, Ky., 416 S.W.2d 355; Woods Exploration and Producing Company v. Aluminum Company of America, D.C., 36 F.R.D. 107. To sustain a summary judgment, the pr......
-
Long Run Baptist Ass'n, Inc. v. Louisville and Jefferson County Metropolitan Sewer Dist.
...22, 1988, it "shouldered the initial burden of establishing the apparent non-existence of any issue of material fact," Mooser v. Mason, Ky., 416 S.W.2d 355, 357 (1967), and that it was then incumbent on appellants to submit countervailing evidence. We In granting summary judgment the court ......
-
Reserve Ins. Co. v. Richards
...not be invoked where a genuine issue of a material fact is involved. CR 56.01; Conley v. Hall, Ky., 395 S.W.2d 575 (1965); Mooser v. Mason, Ky., 416 S.W.2d 355 (1967). Here, the issue of timely notice is a question of fact and should have been submitted to a The affidavit of Richards' attor......