SMS Manufacturing Company v. US-Mengel Plywoods

• Decision Date: 09 February 1955
• Docket Number: No. 4950.,4950.
• Citation: 219 F.2d 606
• Parties: SMS MANUFACTURING COMPANY, Inc., a corporation; and Manly M. Moore, individually, Appellants, v. U. S.-MENGEL PLYWOODS, Inc., a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

219 F.2d 606 (1955)

SMS MANUFACTURING COMPANY, Inc., a corporation; and Manly M. Moore, individually, Appellants, v. U. S.-MENGEL PLYWOODS, Inc., a corporation, Appellee.

No. 4950.

United States Court of Appeals, Tenth Circuit.

February 9, 1955.

Phil E. Daugherty, Oklahoma City, Okl. (Ames, Daugherty, Bynum & Black, Oklahoma City, Okl., was with him on the brief), for appellants.

James D. Fellers and J. H. Hewett, Oklahoma City, Okl. (James U. Smith, Jr., Louisville, Ky., and Mosteller, Fellers, Andrews & Loving, Oklahoma City, Okl., were with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

This was an action instituted by U. S.-Mengel Plywoods, Inc., a corporation, against SMS Manufacturing Company, Inc., a corporation, and Manly M. Moore. The defendant Moore was president and manager of the defendant SMS Manufacturing Company. The action was to recover against the defendant SMS Manufacturing Company on account for goods, wares, and merchandise sold and delivered to it, and to recover against the defendant Moore upon his guarantee of the account. An itemized, verified statement of the account, an invoice and the guarantee or a copy thereof, were attached to the complaint. By answer, the defendant SMS Manufacturing Company admitted that it placed with plaintiff an order for certain cut plywood material in groups of special cut sizes but alleged that without the consent of such defendant plaintiff shipped material of different dimensions from that specified in the order which rendered all items shipped unusable and worthless to such defendant, and it further pleaded that by stenciling with ink shipping orders on the edges of some of the items of material all of the material was rendered unfit and unusable for the purposes for which it had been ordered. By separate answer, the defendant Moore admitted that he executed the written guarantee referred to in the complaint but denied that the defendant SMS Manufacturing Company was indebted to plaintiff in any amount; and for further answer and defense, he adopted many of the material allegations contained in the answer of his co-defendant.

The depositions of the defendant Moore, Fred B. Ringwald, branch manager of plaintiff at Oklahoma City, and William L. Perkins, salesman for plaintiff at Oklahoma City, were taken; and in connection with the taking of such depositions, certain documents and correspondence were identified and established in respect to authenticity. Plaintiff filed a motion for summary judgment in its favor on the ground that the pleadings, exhibits, and deposition showed that the plaintiff was entitled to judgment as a matter of law. Defendant filed a motion for leave to file amended answers and cross bills. The court denied leave to file amended answers and cross bills and entered summary judgment for plaintiff. Defendants appealed; and for convenience, continued reference will be made to the parties as plaintiff and defendants, respectively.

Defendants advance the contention that the entry of summary judgment is proper only where there is no issue to be resolved by evidence; that there were differences between plaintiff and defendants in respect to facts which could be determined only by evidence; and that therefore the entry of the summary judgment constituted error. Certain definite landmarks have been blue-printed for guidance in determining the question whether summary judgment should be entered. Federal Rules of Civil Procedure, rule 56(c), 28 U.S.C. authorizes the entry of summary judgment if the pleadings, depositions, and admissions on file, together with the affidavits, if any, 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. The purpose of the rule is to provide against the vexation and delay which necessarily come from the formal trial of cases in which there is no substantial issue of fact. Its objective is to permit the expeditious disposition of cases of that kind. But the procedure is not to be used as a substitute for a regular trial of cases in which there are disputed issues of fact upon which the outcome of the litigation depends, and it should be invoked with due caution to the end that litigants may be afforded a trial where there exists between them a bona fide dispute of material facts. If it affirmatively appears however from the pleadings, the admissions, the depositions, and the affidavits, if any, that there is no genuine issue as to any material fact upon which the outcome of the litigation depends, the case is appropriate for disposition by summary judgment and it becomes the duty of the court to enter such judgment. Brooks v. Utah Power & Light Co., 10 Cir., 151 F.2d 514; Schreffler v. Bowles, 10 Cir., 153 F.2d 1, certiorari denied, 328 U.S. 870, 66 S.Ct. 1366, 90 L.Ed. 1640; Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; Fife v. Barnard, 10 Cir., 186 F.2d 655; Zampos v. United States Smelting, Refining & Mining Co., 10 Cir., 206 F.2d 171.

Plaintiff being the party litigant moving for summary judgment, the burden rested upon it to show in the manner required by Rule 56(c), supra, that there was no genuine issue respecting any material fact upon which the outcome of the litigation depended, and that plaintiff was entitled to judgment in its favor. There were no affidavits. From the pleadings, the depositions, and the admissions, these facts appeared without challenge or controversy. As ordered, a specified number of a certain kind of units or pieces of the material were to be 12½ inches in length. As performance of that part of the order, approximately one-half of the number of that...