Russell v. City of Rogers, 5-2971
| Decision Date | 27 May 1963 |
| Docket Number | No. 5-2971,5-2971 |
| Citation | 236 Ark. 713,368 S.W.2d 89 |
| Parties | C. Max RUSSELL, Appellant, v. CITY OF ROGERS, Appellee. |
| Court | Arkansas Supreme Court |
Jeff Duty, Rogers, for appellant.
Scott & Davidson, by Bob Scott, Rogers, for appellee.
This is an action by the City of Rogers to recover judgment for $8,674.00 under an oral contract by which the appellant Russell agreed to pay the city at the rate of $2.00 a foot for 4,337 feet of sewer line to be laid by the city in an undeveloped subdivision owned by Russell. Russell admits that the line was laid by the city. His defense is that he was induced by misrepresentation to enter into the contract. The circuit judge, considering the matter upon the pleadings and upon Russell's testimony in a deposition offered by the city, sustained the city's motion for a summary judgment in the full amount sued for.
Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Rules of Civil Procedure. Ark.Stat.Ann. § 29-211 (Repl.1962). It provides that a summary judgment shall be rendered if the pleadings and proof on file show 'that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' It has been pointed out, under the Federal Rule, that te theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore's Federal Practice (2d Ed.), § 56.02(10). Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.
When Russell's deposition is so considered we cannot say that the city was entitled to judgment as a matter of law. Russell testified that the city had planned to lay the sewer line in his subdivision whether he agreed to it or not. He was told by the city's representatives that the cost would be $4.00 a foot and that the city would pay half the cost if he would agree to pay the other $2.00 a foot when the work was completed. If he did not accept that arrangement then he would be required to pay $4.00 a foot for that part of the line apportionable to each lot as the various lots were connected to the sewer mains. Russell said that he was told that all the property owners were being offered this same choice.
Russell testified that he accepted the first alternative in order to save $2.00 a foot. Before he paid for the completed work, however, he found that he was being discriminated against in that...
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