De Salvo v. Howell Plaza, Inc.

• Decision Date: 27 February 1968
• Citation: 38 Wis.2d 167,156 N.W.2d 473
• Parties: Jack DE SALVO et al., Appellants, v. HOWELL PLAZA, INC., Respondent.
• Court: Wisconsin Supreme Court

Page 473

156 N.W.2d 473

38 Wis.2d 167

Jack DE SALVO et al., Appellants, v. HOWELL PLAZA, INC., Respondent.

Supreme Court of Wisconsin.

Feb. 27, 1968.

Rehearing Denied May 7, 1968.

Boren & Schmidt, Cudahy, Walther & Burns, Milwaukee, of counsel, for appellants.

Frederick Hersh, John D. Finerty, Milwaukee, for respondent.

HEFFERNAN, Justice.

Does the plaintiffs' affidavit, which fails to aver that there is no defense to the action, comply with the requirements of the summary-judgment statute

The defendant in his brief and upon oral argument correctly points out that the plaintiffs' affidavit failed to incorporate therein in the statement required by sec. 270.635(2), Stats., '* * * that he believes that there is no defense to the action * * *.' We have previously held that the omission of that statement is fatal to a motion for summary judgment. Szuszka v. City of Milwaukee (1961), 15 Wis.2d 241, 112 N.W.2d 699. However, we pointed out in Townsend v. LaCrosse Trailer Corp. (1950), 256 Wis. 609, 613, 614, 42 N.W.2d 164, that the failure to depose either 'that there is no defense to the action or that the action has no merit,' cannot be considered on appeal in this Court if the question was not presented to the trial court. A careful perusal of the record does not indicate that the defendant raised this defect in the circuit court, although the memorandum opinion of the trial judge indicated his awareness of the omission. However, it is not evident that the defendant based his objections to the plaintiffs' motion on this basis. We pointed out in Townsend, supra, and more recently said in West Side Bank v. Marine National Exchange Bank (1968), Wis., 155 N.W.2d 587:

'Had the question been raised in the trial court and West Side's affidavits were then found insufficient, the appellant would have been entitled to renew its motion upon the submission of affidavits in compliance with the summary-judgment statute.'

Thus, were the question presented in the trial court, the plaintiffs would have had the right to amend their affidavit to contain the statutory language and to renew their motion. We, therefore, conclude that the defendant's objection was not timely raised and is, therefore, not before this Court.

Do the affidavits raise substantial issues of fact that must be determined by trial court

The recent case of Peterson v. Maul (1966), 32 Wis.2d 374, 376, 377, 145 N.W.2d 699, 701, 702, summarizes the conditions that are prerequisite to the granting of a motion for summary judgment:

'* * * summary judgment is a drastic remedy and should not be granted if any material facts are in dispute or if the inferences which may reasonably be drawn from the facts are doubtful. It is only when the facts or the reasonable inferences drawn therefrom lead to only one conclusion as to each necessary ultimate fact that it can be said that only a matter of law is presented which should be decided upon a motion for summary judgment. The material evidentiary facts must appear with certainty; the court cannot act as a trier of disputed facts on a motion for summary judgment; it cannot pass upon the weight and credibility of disputed facts or doubtful inferences as they appear from affidavits, other documents, or pleadings.' See also Leszczynski v. Surges (1966), 30 Wis.2d 534, 538, 141 N.W.2d 261.

The essence of the plaintiffs' argument is that, as a matter of law, the procuring of a license was a condition precedent to the effectiveness of the lease agreement.

We conclude that the procurement of a license was a condition precedent to the lessor's right to claim rent payments from the lessees. 5 Williston, Contracts (3d ed.), secs. 666A. 667, 667A, pp. 141--143; Restatement, Contracts, sec. 250, p. 359; 3A Corbin, Contracts, sec. 628, pp. 16, 17, discuss the distinction between a condition precedent and a condition subsequent and their effect upon the obligation of the parties to perform. Professor Williston states:

'A precedent condition in a contract is the typical kind. It must be performed or happen before a duty of immediate performance arises on the promise which the condition qualifies * * *. "Condition precedent' is one calling for performance of some act after the contract is entered into on performance of which the obligations depend.' * * * The term 'condition subsequent' as normally used in contracts in contrast to 'condition precedent' should mean subsequent to a duty of immediate performance, that is, a condition which divests a duty of immediate performance of a contract after it has once accrued. Such conditions are very rare.' Williston, Contracts, supra, pp. 141--143.

We are satisfied that the clause requiring the procurement of a liquor license is unambiguous and that the duty of the plaintiffs to pay rent was conditional only on the procurement of a liquor license. The plaintiffs, assuming correctly that the clause gives rise to a condition precedent, attempt to obviate any factual issue by sumitting two affidavits. One is that of John De Salvo, setting forth the terms of the lease...