Ray v. Northern Sugar Corp., 8565

• Decision Date: 18 February 1971
• Docket Number: No. 8565,8565
• Citation: 184 N.W.2d 715
• Parties: W. D. RAY, Plaintiff and Appellant, v. NORTHERN SUGAR CORPORATION and The H. K. Ferguson Company, Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 715

184 N.W.2d 715

W. D. RAY, Plaintiff and Appellant, v. NORTHERN SUGAR CORPORATION and The H. K. Ferguson Company Defendants and Respondents.

Civ. No. 8565.

Supreme Court of North Dakota.

Feb. 18, 1971.

Rehearing Denied March 30, 1971.

Syllabus by the Court

1. A party against whom a claim is asserted may move, at any time, with or without supporting affidavits, for a summary judgment in his favor as to all or any part thereof. Rule 56(b), N.D.R.Civ.P.

2. When a motion for summary judgment is made and supported, as provided in the rule for summary judgment, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not do so, summary judgment shall be entered against him, if appropriate. Rule 56(e), N.D.R.Civ.P.

3. In this case, where the defendants, by affidavit, stated that the subcontract upon which the plaintiff brings this action provides that if the subcontractor accepts final payment, such acceptance of final payment would be a release of any and all claims under the subcontract; that, prior to such final payment, plaintiff had filed a claim for $16,555.85, which claim was denied by the defendants, and that, after such denial of plaintiff's claim, the plaintiff was paid and he accepted final payment under the subcontract; and where the plaintiff, on defendants' motion for summary judgment, failed to present any evidence, by affidavit or otherwise, denying defendants' assertions, and failed to file any response setting forth specific facts showing that there is a genuine issue for trial, the trial court properly entered summary judgment against him.

4. For reasons stated in the opinion, the summary judgment appealed from is affirmed.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for plaintiff and appellant.

DePuy, Fair & O'Connor, Grafton, for defendants and respondents.

STRUTZ, Chief Justice, on reassignment.

The plaintiff commenced an action to foreclose a mechanic's lien on property located in Pembina, North Dakota, upon which the defendant Northern Sugar Corporation had erected a building. The work of constructing this building was done by the defendant Ferguson Company. The plaintiff was a subcontractor of Ferguson, and he performed certain work on the building during the course of construction.

The plaintiff in his complaint alleges that a written contract was entered into between the plaintiff and the defendant Ferguson Company relating to the work which plaintiff was to perform as such subcontractor. He further alleges that he has performed all of the conditions of the contract by him to be performed, including the furnishing of some additional labor and materials; that the defendant Ferguson Company has paid all that it agreed to pay under the contract, but that it has failed to pay for additional labor and materials furnished in the amount of $16,555.85; that the plaintiff, within the time provided by law, caused to be filed in the office of the clerk of the district court of Pembina County a notice of mechanic's lien and a verified account of plaintiff's lien against the defendants; and that the defendants thereafter caused to be served upon the plaintiff a written demand that an action be commenced within thirty days, as provided by law.

The answer of the defendant Northern Sugar Corporation admits, among other things, that it contracted with the defendant Ferguson Company to construct a beet sugar factory; admits that the defendant Ferguson Company subcontracted a portion of the work to the plaintiff; and alleges that the plaintiff has been paid in full.

The answer of the defendant Ferguson Company admits the contract with the defendant Northern Sugar Corporation; admits subcontracting part of the work of construction to the plaintiff; and alleges that the plaintiff has been paid in full under the subcontract.

After issue had been joined, the defendants moved for summary judgment and, in the alternative, for a separate trial.

In support of motion for summary judgment, the defendant Ferguson Company submitted the following documents: the subcontract with exhibits attached, including an instrument which provides, among other things, that if the plaintiff accepts final payment of the contract price, it shall be a release of all claims for anything done or relating to the work in the subcontract; certificate for final payment, dated June 30, 1964, together with an accounts-payable voucher signed by the plaintiff setting forth the payment due the plaintiff with a deduction of $653 from the final payment; and two written documents dated July 30, 1964, also signed by the plaintiff, authorizing the defendant to deduct $578 from the final payment to cover costs of calking and a butyl rod which the plaintiff had not furnished and $75 for the rubbing of a wall, as required by the subcontract.

Also submitted is an affidavit of C. T. Johnson, setting forth the subcontract with the plaintiff, and stating: that a claim had been made by the plaintiff for certain damages in the amount of $16,555.85, dated January 25, 1964, and that a conference had been held in Drayton on such claim of the plaintiff on May 12, 1964, after which the plaintiff was advised that his claim for such damages was...