Prime Mfg. Co. v. A. F. Gallun & Sons Corp.

• Decision Date: 11 October 1938
• Citation: 281 N.W. 697,229 Wis. 348
• Court: Wisconsin Supreme Court
• Parties: PRIME MFG. CO. v. A. F. GALLUN & SONS CORPORATION.

229 Wis. 348

281 N.W. 697

PRIME MFG. CO.

v.A. F. GALLUN & SONS CORPORATION.^*

Supreme Court of Wisconsin.

Oct. 11, 1938.

Appeal from a judgment of the Circuit Court for Milwaukee County; John C. Klezcka, Judge.

Reversed.

Action by Prime Manufacturing Company against A. F. Gallun & Sons Corporation. Counterclaims interposed. From a judgment entered February 18, 1938, granting judgment for the plaintiff and dismissing the counterclaims, entered on a motion for a summary judgment, the defendant appeals. The material matters involved are stated in the opinion.Quarles, Spence & Quarles, of Milwaukee (L. J. Burlingame, Kenneth Grubb, Jefferson D. Burrus, and Arthur Larson, all of Milwaukee, of counsel), for appellant.

Fish, Marshutz & Hoffman and Alexander Cannon, all of Milwaukee (I. A. Fish and W. H. Voss, both of Milwaukee, of counsel), for respondent.

FOWLER, Justice.

The judgment appealed from was for the amount demanded in the complaint and was entered upon the motion of the plaintiff for a summary judgment. The portion of the summary judgment statute here material relating to entry of such judgment by the plaintiff, subsec. (2) of sec. 270.635, provides that such judgment “may be entered *** upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall *** establish his cause of action sufficiently to entitle him to judgment *** together with the affidavit of *** [the plaintiff] that he believes that there is no defense to the action *** unless the *** [defendant] shall, by affidavit or other proof, show facts which *** entitle him to a trial.”

[1][2][3] The purpose of the statute so far as it relates to motions by the plaintiff, is to prevent interposition of false or frivolous answers and thereby delay the entry of judgment until the case shall be reached in its regular order in the calendar for trial by court or jury. It is aimed at delay by presenting a sham answer. See the article of Prof. Boesel in 6 Wisconsin Law Review, pp. 6, 11. Unless it appears from the record and the showing made by affidavits that the answers presents no defense or presents a false or frivolous one, the motion must be denied. Where the answer traverses all material allegations of the complaint as to the terms of a contract in suit and is supported by affidavits that controvert all facts essential to the support of the cause of action alleged a summary judgment cannotbe entered but the case must proceed to trial by court or jury as the case may be. Sullivan v. State, 213 Wis. 185, 251 N.W. 251, 91 A.L.R. 877. The rule applicable to such motions is succinctly stated in paragraph 2 of the syllabus of that case: “A motion for summary judgment must be denied where a genuine and substantial issue of fact is presented by the pleadings.” See page 191, 251 N.W. page 254 of the opinion.

The statute or court rule, which we shall refer to as a statute because it has the effect of a statute, has been in force in this state only a short time, so that but few cases dealing with it have reached this court. But the statute or rule is derived from the statute of New York and the decisions of the courts of that state establishing the propositions above stated are numerous. A multitude of cases in those courts support the propositions above stated. McAnsh v. Blauner, 222 App.Div. 381, 226 N.Y.S. 379;Commonwealth Fuel Co. v. Powpit Co., 212 App.Div. 553, 209 N.Y.S. 603;L. R. Munoz & Co. v. Savannah Sugar Ref. Corp., 118 Misc. 24, 193 N.Y.S. 422;Norwich Pharmical Co. v. Barrett, 205 App.Div. 749, 200 N.Y.S. 298;Adler v. Wiener, Sup., 197 N.Y.S. 599;Edw. F. Dibble Seedgrower v. Jones, 130 Misc. 359, 223 N.Y.S. 785;Rogan v. Consolidated Coppermines Co., 117 Misc. 718, 193 N.Y.S. 163;Gravenhorst v. Zimmerman, 236 N.Y. 22, 139 N.E. 766, 27 A.L.R. 1465;Childs Co. v. Stone, 228 App.Div. 546, 240 N.Y.S. 582, 583;Moir v. Johnson, 211 App.Div. 427, 207 N.Y.S. 380.Curry v. MacKenzie, 239 N.Y. 267, 146 N.E. 375, holds that to justify a summary judgment the court must be convinced that the issue presented is not genuine but feigned and that there is nothing to be tried.

Inspection of the pleadings in this case clearly shows that they present a real and genuine issue. The complaint states a cause of action to recover the agreed purchase price of $5,350 of a leather dryer, which plaintiff “agreed to sell and the defendant agreed to buy,” consisting of parts to be delivered at and erected upon defendant's premises, which plaintiff delivered and for which the defendant refused to pay.

The defendant by answer admits that plaintiff delivered the parts for a machine and for which it conditionally agreed to pay the alleged price. But it alleges that the plaintiff offered to sell the machine subject to certain written guaranties and upon representation that the machine would properly dry and dampen certain grades of leather manufactured by defendant in its business as a tanner; that the machine would enable defendant to process leather at less cost than with the method it was using; that pursuant to and in reliance on such representations the defendant offered to accept the plaintiff's offer of sale on condition that the machine would make leather as good as the defendant was then making by the process in use; that the defendant was to install the machine for the purpose of trying it out; and that defendant was to be the sole judge of the quality of leather processed by the machine; admits that the plaintiff delivered the parts of the machine at its plant; alleges that thereafter the defendant at request of plaintiff tried to use the machine; that it did not comply with the plaintiff's said representations and warranties; that for several months at the request of defendant, plaintiff made repeated trials of the machine, following suggestions of the plaintiff, but that after said trials the machine failed to comply with the said representations and guaranties, and failed to make as good leather as defendant had been making; that defendant from time to time notified the plaintiff that the machine did not comply with plaintiff's representations and guaranties, and on June 15, 1936, instructed the plaintiff to move the machine from its premises. The defendant also interposed a counterclaim in which it repeated the allegations of its answer above stated and alleged that the plaintiff failed to remove the machine; that the machine occupied nearly 2,000 square feet of floor space; that the presence of the machine inconvenienced the defendant in the conduct of its business and put it to considerable expense; that the reasonable rental value of the premises occupied by the machine is $56.11 per month.

In another counterclaim defendant repeats...