Newton v. Misner

• Decision Date: 15 February 1967
• Docket Number: No. 3505,3505
• Citation: 423 P.2d 648
• Parties: Ernest L. NEWTON and Cella M. Newton, Appellants (Plaintiffs below), v. D. S. MISNER and Willie J. Misner, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 648

423 P.2d 648

Ernest L. NEWTON and Cella M. Newton, Appellants (Plaintiffs below), v. D. S. MISNER and Willie J. Misner, Appellees (Defendants below).

No. 3505.

Supreme Court of Wyoming.

Feb. 15, 1967.

R. G. Diefenderfer, Bruce P. Badley, Sheridan, Elizabeth A. Kail, Lander, for appellants.

W. J. Nicholas, of Nicholas & Thomas, Lander, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiffs Newtons sued defendants Misners, alleged that the Misners by a 'Standard Purchase Offer, Acceptance and Receipt,' hereinafter called 'agreement,' offered on April 30, 1963, to trade their Cody residence property for the Newtons' Lander residence and to pay plaintiff $12,500 net in cash, $500 down payment being deposited with Toyne, a real estate dealer, who had assisted in the drafting of the 'agreement' and had shown the Lander property to defendants; that Misners were called upon to pay the remaining $12,000, had paid $4,748.44 in addition to the original deposit, had refused to pay the remainder due in the amount of $7,251.56; and further that defendants had executed a warranty deed to plaintiffs for the Cody property, showing the same to be free from encumbrances when the property at the said time had a paving assessment against it for $788.93. On these bases, plaintiffs sought a judgment for $8,040.49. Defendants answered, admitting the trading of the residences by way of the mentioned agreement; asserted that plaintiffs had been represented by their agent Toyne; denied generally; alleged as a second defense vagueness, indefiniteness, and ambiguity of the 'agreement,' the lack of meeting of minds, and the later stating by the defendants that they would withdraw from the transaction if required to pay the $12,000 claimed by plaintiffs; and pleaded that the amount which they had paid was a settlement and an accord and satisfaction of plaintiffs' claims, and further, that plaintiffs were guilty of laches and estopped. As a third defense, defendants pleaded that the paving assessments were specifically excepted from the operation of the warranty deed for the Cody property. There were numerous pre-litigation maneuverings of the parties by requests for admissions, interrogatories, affidavits, and depositions, some before and some after defendants filed a motion for summary judgment, which was granted by the court, and from which this appeal has been taken.

Plaintiffs have raised several claimed errors, which in perspective can be epitomized as urging that the trial court erred (1) in not finding there to have existed genuine issues of material fact; (2) in misinterpreting the applicable statutes and legal principles in holding that defendants were entitled to judgment as a matter of law.

Both parties recognize that to prevail on the First ground the appellant must show there to have been a genuine issue of material fact, ¹ and the primary question before us then relates to that aspect.

We have at much pains reviewed the record, which is unduly burdened with improper assertions in the affidavits and depositions, replete as they are with irrelevant statements, argument, conclusions, and other impermissible material, the instances of which we consider unnecessary to point out and delineate. Rule 56(c), W.R.C.P., is clear beyond question that 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' (Emphasis supplied.) The material presented to the trial court as a basis for a summary judgment should be as carefully tailored and professionally correct as any evidence which is admissible to the court at the time of trial, ² and it is proper that matter which fails to meet the requirements of Rule 56(c) be stricken on motion. ³ Peripheral allusion was made to this in Dixon v. Credit Bureau of Douglas, Wyo., 419 P.2d 707, 709.

The 'agreement,' dated April 30, 1963, and signed May 7, 1963, need not be set out in toto since it was drawn upon the 'Standard Purchase Offer, Acceptance and Receipt, Approved as to form by Wyoming Real Estate Board,' which is well known. The 'agreement' stated that the buyers, Misners, offered to purchase from the sellers, Newtons, their Fremont County property, Lots 17, 18, 19, and 20, Block 66, Jackson Park, re-dedicated addition, for a total purchase price of $52,500 'on following terms and conditions, to-wit $500. deposit with this offer as part payment to be held by Agent pending exchange of final papers, subject to the following contractural conditions, and the balance of the purchase price to be paid as follows: Buyer will trade in as part payment-$40,000 home on approximate 3/4 acre in Cody, Wyoming. Balance of $12,000 will be paid Sellers agent upon delivery of merchantable title. Sellers will assume Provident Federal loan not in excess of $22,000 on said Cody home. Buyers will assume First Guaranty Loan not in excess of $30,000 on said Lander home.' The remainder of the 'agreement' was the printed form, with the blanks filled in to show the year's taxes prorated between the parties and actual possession of the sellers' estate to be delivered to buyers on May 15, 1963.

Briefly, the situation prior to and at the time of signing the 'agreement' may be stated as follows: Toyne, a real estate agent in Lander, contacted Newton, who was residing in Carson City, Nevada, about the possibilities of showing Newton's Lander property to the Misners, possible purchasers. The occasion for Toyne's call was an inquiry by friends of the Misners, Fred Fraley-a realtor-and Dr. Martin, concerning the Newton property. Newton indicated that he was willing for Toyne to show the property, seeing what could be done about a sale, and Toyne proceeded. Thereafter, the previously mentioned 'agreement' was drafted and the Newtons made a trip to Cody, viewed the Misners' property, went to Lander, signed the 'agreement,' executed a deed to the Lander property, and caused it to be recorded. According to Newton, Toyne and he had a telephone conversation with one or both of the Misners and Fraley on the day the Newtons signed the agreement, the conversation being concluded by one of the Misners saying, 'well, I guess we have a house in Lander and all we have to do now is dig up anotehr twelve thousand dollars.' Misner denied there was a telephone conversation on that date. According to Newton, at that same time, just prior to the telephone conversation, he had told Toyne he didn't think the Misner house would bring forty thousand but that the tenor of the deal was that if he could get his loan paid off and $12,500 and could get out on the Misner house with $35,000 that he would probably be pretty well off because the real estate market in both Cody and Lander was shot. From this point on, the statements of the happenings continue to be incompatible, but it is undisputed that Newton began to complain to Toyne that the deal had not been consummated with the cash balance paid by the Misners to the Newtons. According to Newton, later in May he tried to call the Misners and finally reached Mrs. Misner on the 27th or 28th, asked her if there was any hitch or if the Misners were planning to go through with the deal, and she responded that they were having difficulty in...