Skyline Const., Inc. v. Sentry Realty, Inc.

• Decision Date: 10 May 1966
• Citation: 31 Wis.2d 1,141 N.W.2d 909
• Parties: SKYLINE CONSTRUCTION, INC., a Wis. corporation, Plaintiff, v. SENTRY REALTY, INC., a Wis. corporation, Appellant, Joseph G. Gaszak et al., Respondents.
• Court: Wisconsin Supreme Court

Page 909

141 N.W.2d 909

31 Wis.2d 1

SKYLINE CONSTRUCTION, INC., a Wis. corporation, Plaintiff, v. SENTRY REALTY, INC., a Wis. corporation, Appellant Joseph G. Gaszak et al., Respondents.

Supreme Court of Wisconsin.

May 10, 1966.

Beaudry & Kershek, Milwaukee, Richard D. Kaestner, Milwaukee, of counsel, for respondent.

BEILFUSS, Justice.

Sentry contends there are no undisputed material facts which would relieve the Gaszaks from liability under the terms of the warranty.

Sec. 270.635(2), Stats., provides for summary judgment:

'The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall, if the motion is by the plaintiff, establish his cause of action sufficiently to entitle him to judgment; and, if on behalf of the defendant, such evidentiary facts, including documents or copies thereof, as shall show that his denials or defenses are sufficient to defeat the plaintiff, together with the affidavit of the moving party, either that he believes that there is no defense to the action or that the action has no merit (as the case may be) unless the opposing party shall, by affidavit or other proof, show facts which the court shall deem sufficient to entitle him to a trial.'

The rules under which this court approaches questions on summary judgment are well established.

'The rules governing summary judgments are well known and have been frequently stated and explained by this court. Under the rule of Hyland Hall & Co. v. Madison Gas & Electric Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305, and Dottai v. Altenbach (1963), 19 Wis.2d 373, 120 N.W.2d 41, we first examined the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635(2), Stats., and if he has, we then examine the opposing party's affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then only a matter of law is presented which should be decided upon the motion. Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis.2d 545, 105 N.W.2d 807; Bond v. Harrel (1961), 13 Wis.2d 369, 108 N.W.2d 552 (98 A.L.R.2d 330).' ¹

We have also pointed out on numerous occasions that a summary judgment is not to be easily granted, but only upon a clear showing the no substantial issue of fact exists.

'We have often said that the power of the courts under the summary-judgment statute (sec. 270.635, Stats., 33 W.S.A., p. 309) is drastic and should be exercised only when it is plain there is no substantial issue of fact or if permissible inference from undisputed facts to be tried. De Bonville v. Travelers Ins. Co., 1959, 7 Wis.2d 255, 96 N.W.2d 509, 97 N.W.2d 392; Ondrejka v. Ondrejka, 1958, 4 Wis.2d 277, 90 N.W.2d 615; Braun v. Jewett, 1957, 1 Wis.2d 531, 85 N.W.2d 364; Udovc v. Ross, 1954, 267 Wis. 182, 64 N.W.2d 747, 66 N.W.2d 200.' ²

In applying these rules we first look to the moving papers and documents presented by Sentry. These papers, in the form of excerpts from the adverse examinations of the Gaszaks, show that the Gaszaks signed the offer to purchase knowing that it contained the warranty. They also show that there was a dispute over the meaning of the warranty language, and that Mr. Walczak, Sentry's president, told the Gaszaks that they had nothing to worry about if there was no peat or peat moss on the property because Sentry was only worried about peat moss. The moving papers also include an affidavit of Mr. Bay, the excavator, that at the six and one-half foot level he ran into 'a layer of clay fill over a covered creek or natural drainage ditch bed; that underneath the clay fill, affiant ran into soft muck bottom containing peat moss, peat and water. * * *' From this Sentry argues that a summary judgment in its favor is necessary because the warranty was a general warranty against any abnormal subsoil condition which would not support the intended construction, and because even if the warranty were held to apply to a peat moss condition only, that condition was encountered.

The warranty 'there...