Noblett v. General Electric Credit Corporation, No. 9704.

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtPER CURIAM
Citation400 F.2d 442
Docket NumberNo. 9704.
Decision Date12 November 1968
PartiesErnest V. NOBLETT, Appellant, v. GENERAL ELECTRIC CREDIT CORPORATION, Appellee.

400 F.2d 442 (1968)

Ernest V. NOBLETT, Appellant,
v.
GENERAL ELECTRIC CREDIT CORPORATION, Appellee.

No. 9704.

United States Court of Appeals Tenth Circuit.

April 2, 1968.

Petitions for Rehearing and Rehearing Denied June 20, 1968.

Certiorari Denied November 12, 1968.


400 F.2d 443
COPYRIGHT MATERIAL OMITTED
400 F.2d 444
Val R. Miller, Oklahoma City, Okl. (Paul D. Sullivan, Duncan, Okl., on the brief), for appellant

Gary C. Rawlinson and James D. Fellers, Oklahoma City, Okl., for appellee.

Before MURRAH, Chief Circuit Judge, LEWIS, Circuit Judge, and CHRISTENSEN, District Judge.

Petitions for Rehearing and Rehearing En Banc Denied June 20, 1968.

Certiorari Denied November 12, 1968. See 89 S.Ct. 295.

CHRISTENSEN, District Judge.

In this diversity action General Electric Credit Corporation obtained summary judgment against Ernest V. Noblett for rentals under a bowling equipment "Rental Lease", which had been assigned to the corporation by the lessor, Bowl-Mor Company.

Whether the case was factually ripe for summary judgment and whether Noblett in the rental agreement validly waived defenses as against the assignee as a matter of law, are the problems presented by this appeal.

Noblett's answer as amended had raised among other defenses that of failure of consideration by reason of alleged breaches of an express warranty against defects, an implied warranty of fitness and the obligations of the lessor to furnish advertising and training assistance.

The rental agreement included the following provision:

"The lessor may assign all its right, title and interest under this lease, including the payments due hereunder, but the assignee shall not be held responsible for any of the lessor\'s obligations. The obligations of the Lessee shall, however, continue in full force and effect."

Applying Massachusetts law in accordance with the terms of the rental agreement, and being of the view that Noblett thereby had waived the pleaded defenses, General Electric Credit Corp. v. Noblett, 268 F.Supp. 984 (W.D.Okl. 1967), the trial court granted summary judgment for the balance of the rentals in the sum of $64,389.91, together with interest of $3,541.45, $11,814 attorney's fees and costs of the action.

Section 9-206, Chapter 106, of the General Laws of Massachusetts, based upon the Uniform Commercial Code, provides:

"(1) Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the Article on Commercial Paper (Article 3) * * *."

The equipment did not constitute "consumer goods" within the meaning of the Act.

The appellant Noblett contends that under any view of the Massachusetts law this case was not ripe for summary

400 F.2d 445
judgment since there was an issue of fact whether the assignee credit corporation took the assignment "for value, in good faith, and without notice of a claim or defense"; if not, under the terms of the Code no waiver agreement would be recognized

In support of its motion for summary judgment the credit corporation filed below an affidavit from one R. N. Lamy, who stated that he was a Credit Specialist for General Electric Credit Corporation; that on the 24th day of May, 1965, General Electric Credit Corporation took an assignment from Bowl-Mor Company, Inc., for "good and valuable consideration" of the lease in question and "that said assignment was taken by General Electric Credit Corporation in good faith and without notice of any claim or defenses which Ernest V. Noblett might have against Bowl-Mor Company, Inc.".

We are not unmindful of the practical difficulties of establishing by affidavit in strict compliance with Rule 56(e), F.R.Civ.P., a lack of notice on the part of a corporation having numerous officers, managing agents and employees. A reasonable application is all that is required. It is apparent that in any view this affidavit did not conform with the requirements that such an affidavit be made on personal knowledge, state facts which would be admissible in evidence and show affirmatively that affiant was competent to testify to the matters therein stated. See Zampos v. United States Smelting and Refining and Min. Co., 206 F.2d 171 (10th Cir. 1953). Cf. Bumgarner v. Joe Brown Company, 376 F.2d 749 (10th Cir. 1967); Preble v. Johnson, 275 F.2d 275 (10th Cir. 1960).

But at no time did the appellant indicate to the court below, directly or indirectly, that he questioned the sufficiency or effect of the affidavit. His affidavit in response to the motion was confined to assertions that Bowl-Mor had failed to perform its obligations and that there had been an understanding that a corporation to be organized by Noblett rather than he personally was to be liable for rentals. No denial or other reference was made to the Lamy affidavit on the question of notice. Noblett asked, and was granted, leave to make a further search and showing concerning his claim that there was some writing relieving him from personal responsibility. No such showing was made and no further affidavit was submitted. The appellant did not indicate to the trial court in any way that he questioned the form, substance or effect of the affidavit.

It was said long ago and observed in various applications since that "Errors as a rule to be reviewable on appeal must be definitely and timely called to the attention of the trial court in order to afford a fair opportunity for it to pass upon the matter to correct its own errors, if any." Scritchfield v. Kennedy, 103 F.2d 467 (10th Cir. 1939). An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike; and formal defects are waived in the absence of a motion or other objection. 6 Moore's Federal Practice § 56.22(1) p. 2817; 3 Barron and Holtzoff, Federal Practice and Procedure § 1237, p. 171; Auto Drive-Away Company of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir. 1966); United States for Use and Benefit of Austin v. Western Electric Co., 337 F.2d...

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49 practice notes
  • Reddy v. Good Samaritan Hosp. & Health Ctr., No. C-3-90-197.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • September 19, 2000
    ...56(e) is subject to a motion to strike." Collazos-Cruz, 117 F.3d 1420, 1997 WL 377037 at *2, citing Noblett v. General Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir.), cert. denied, 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 AA/Northwest seeks to strike, in their entirety, the affidavits ......
  • Weinbaum v. Las Cruces Public Schools, No. CV 03-1043 RB/LAM.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 9, 2006
    ...outcome here; and (3) in any event, Plaintiff could testify to the statement. See Fed.R.Civ.P. 56(e); Noblett v. Gen. Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir. 1968) ("An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike ... [but] formal de......
  • Gonzales v. Sun Life Ins. Co. (In re Furr's Supermarkets, Inc.), Bankruptcy No. 7–01–10779 SA.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of New Mexico
    • December 20, 2012
    ...of the Paraclete, Inc. v. Great American Ins. Co., 866 F.Supp. 1560, 1564 (D.N.M.1994) (citing Noblett v. General Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir.)), cert. denied,393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 (1968).) “Furthermore, the United States Court of Appeals for the Ten......
  • Peralta v. Martinez, No. 2786
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 12, 1977
    ...(D.Conn.1975); United States v. Dibble, supra; Newton v. Misner, 423 P.2d 648 (Wyo.1967); Noblett v. General Electric Credit Corporation, 400 F.2d 442 (10th Cir. 1968); 6, Pt. 2, Moore's Federal Practice § 56.22(1) Absent a motion to strike or to otherwise object to the affidavits, any form......
  • Request a trial to view additional results
49 cases
  • Reddy v. Good Samaritan Hosp. & Health Ctr., No. C-3-90-197.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • September 19, 2000
    ...56(e) is subject to a motion to strike." Collazos-Cruz, 117 F.3d 1420, 1997 WL 377037 at *2, citing Noblett v. General Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir.), cert. denied, 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 AA/Northwest seeks to strike, in their entirety, the affidavits ......
  • Weinbaum v. Las Cruces Public Schools, No. CV 03-1043 RB/LAM.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 9, 2006
    ...outcome here; and (3) in any event, Plaintiff could testify to the statement. See Fed.R.Civ.P. 56(e); Noblett v. Gen. Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir. 1968) ("An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike ... [but] formal de......
  • Gonzales v. Sun Life Ins. Co. (In re Furr's Supermarkets, Inc.), Bankruptcy No. 7–01–10779 SA.
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of New Mexico
    • December 20, 2012
    ...of the Paraclete, Inc. v. Great American Ins. Co., 866 F.Supp. 1560, 1564 (D.N.M.1994) (citing Noblett v. General Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir.)), cert. denied,393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 (1968).) “Furthermore, the United States Court of Appeals for the Ten......
  • Peralta v. Martinez, No. 2786
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 12, 1977
    ...(D.Conn.1975); United States v. Dibble, supra; Newton v. Misner, 423 P.2d 648 (Wyo.1967); Noblett v. General Electric Credit Corporation, 400 F.2d 442 (10th Cir. 1968); 6, Pt. 2, Moore's Federal Practice § 56.22(1) Absent a motion to strike or to otherwise object to the affidavits, any form......
  • Request a trial to view additional results

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