Moresi v. Far West Services, Inc.

• Decision Date: 20 September 1968
• Docket Number: Civ. No. 2834.
• Citation: 291 F. Supp. 586
• Parties: Jan R. MORESI, Plaintiff, v. FAR WEST SERVICES, INC., a California corporation, Defendant.
• Court: U.S. District Court — District of Hawaii

291 F. Supp. 586

Jan R. MORESI, Plaintiff, v. FAR WEST SERVICES, INC., a California corporation, Defendant.

Civ. No. 2834.

United States District Court D. Hawaii.

September 20, 1968.

Louis B. Blissard of Blissard & Conklin, Honolulu, Hawaii for plaintiff.

Genro Kashiwa, Honolulu, Hawaii for defendant.

DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

PENCE, Chief Judge.

Plaintiff has brought suit and moved for a summary judgment on the following alleged facts and circumstances:

On June 15, 1966, defendant executed a promissory note in the sum of $53,000 providing for payment thereafter of principal, with earned interest, in 32 equal quarterly installments, on the 15th of September, December, March and June of each year until 1974. Payments were to be made "only in lawful money * * * at the law office of Attorney * * * Blissard, Suite 505 Trustco Building, Honolulu, Hawaii." The maker waived demand, protest and notice of protest of the note. The note also contained the following: "IN CASE OF DEFAULT for more than fifteen (15) days in the payment of any installment * * * the balance of said principal sum then remaining unpaid * * * shall at the option and upon the demand of the holder * * * become immediately due and payable * * *."

From the pleadings, affidavits and exhibits on file it appears:

The defendant met its quarterly payment schedule until March 1968. All payments were made by check and most by mail. No payment for the March quarterly installment had been made to attorney Blissard by April 8, 1968. The plaintiff, by letter dated April 8, 1968 and mailed on April 12, 1968 to "Far West Services Inc., c/o Mr. Richard A. Park, 609 Alakea Street, Honolulu" with carbon copies to Genro Kashiwa, attorney for the defendant, and to the same Richard A. Park "Vice-President * * * c/o Snack Shop #7, 2323 Kalakaua Avenue", undertook to exercise his option to have the entire unpaid balance become immediately due and payable. Plaintiff avers that Far West Services, Inc. had registered the Alakea Street address with the State of Hawaii, Department of Regulatory Agencies. Park is vice-president of the defendant corporation and as such had, along with its president, executed the note in question. Park is also defendant's agent designated with the Department of Regulatory Agencies to receive service of process on the corporation. "Snack Shop #7" is owned by defendant and is defendant's Honolulu headquarters.

Defendant corporation by affidavit of Park stated that the books of account of defendant for its operations were transferred to the home office of the corporation in Corona del Mar, California, some time about October 1967, and because of certain bookkeeping problems arising out of that transfer there was a "slight delay in the payment of the installment which became due on March 15, 1968." Park, in his affidavit, further stated that neither the defendant corporation nor he, Park, had ever used the Alakea Street address nor had the same ever been reported to the Department of Regulatory Agencies as being the corporation's address in Hawaii, and Park, while not denying in his affidavit that he received a copy of the letter, did however deny that the corporation had ever received the original of plaintiff's "April 8" letter.

Attorney Kashiwa's affidavit states that on April 4, 1968, attorney Blissard had, by phone, inquired of him concerning the amount of interest defendant had paid to plaintiff in 1967; that Blissard never mentioned the fact that he, Blissard, had not yet received the payment due on March 15.

The defendant's check for the March quarterly payment dated April 10, enclosed in an envelope bearing a Pitney-Bowes cancellation stamp of April 10, 1968, but carrying the Corona del Mar post office over-mark of April 14 PM 1968, was sent to "Mr. Louis B. Blissard, Suite 505 Trustco Bldg., 4133 Papu Circle, Honolulu, Hawaii." From Blissard's affidavit it was received by him at his home at 4133 Papu Circle on April 16, 1968.

April 14, 1968 was Easter Sunday. By Park's affidavit, defendant insists that the check dated April 10, 1968 was issued on that date, that it is the corporate practice that such checks are mailed the same day, that the main offices of the corporation are closed on Sundays, and that "it could not be possible that the checks were mailed on April 14, 1968", Easter Sunday. The defendant avers that all of the quarterly payments were paid by check.

Plaintiff never cashed...