Sooner Pipe & Supply Corp. v. Doerrie

• Citation: 69 N.M. 78,1961 NMSC 113,364 P.2d 138
• Decision Date: 16 August 1961
• Docket Number: No. 6806,6806
• Parties: SOONER PIPE & SUPPLY CORP., an Oklahoma Corporation, Plaintiff-Appellee, v. T. J. DOERRIE, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 138

364 P.2d 138

69 N.M. 78

SOONER PIPE & SUPPLY CORP., an Oklahoma Corporation Plaintiff-Appellee, v. T. J. DOERRIE, Defendant-Appellant.

No. 6806.

Supreme Court of New Mexico.

Aug. 16, 1961.

Adams, Foley & Calkins, Albuquerque, for appellant.

Owen B. Marron, David W. King, Albuquerque, for appellee.

NOBLE, Justice.

Plaintiff sued for $9,302.69, together with interest, on an open account for goods, wares and merchandise sold and delivered to defendant. The answer raised two defenses: (1) that the complaint failed to state a claim upon which relief can be granted, and (2) a general denial. A jury was demanded by defendant.

Motion for summary judgment was filed to which was attached an affidavit by a vice-president of plaintiff's corporation. Based upon the affidavit and pre-trial deposition of defendant, the trial court, pursuant to Rule 56(c), found generally that there was no substantial issue of fact and granted plaintiff a motion for summary judgment and thereafter entered judgment for the amount prayed for. This appeal results.

Defendant insists that substantial issues of fact were unresolved; that the evidence as to whether the sale was made to defendant or to Lost Canyon Oil and Uranium Company was conflicting and that summary judgment was erroneously entered.

The pertinent part of Sec. 21-1-1(56)(c), N.M.S.A.1953 Comp. reads:

'* * * The judgment sought shall be rendered forthwith 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 a judgment as a matter of law. * * *'

We are thus called upon to determine whether the trial court correctly sustained plaintiff's motion for summary judgment. A motion for summary judgment should not be granted when there is a genuine issue of material fact and it is not a substitute for a trial. Michelson v. House, 54 N.M. 197, 218 P.2d 861; McLain v. Haley, 53 N.M. 327, 207 P.2d 1013; Agnew v. Libby, 53 N.M. 56, 201 P.2d 775.

'Litigants are entitled to the right of trial where there is the slightest doubt as to the facts.' Michelson v. House, supra [54 N.M. 197, 218 P.2d 863]; Whitaker v. Coleman, 5 Cir., 115 F.2d 305; Ginn v. Mac Aluso, 62 N.M. 375, 310 P.2d 1034.

In resolving the question as to whether summary judgment should be granted, the trial court does not weigh the evidence, nor do we; but the pleadings, affidavits and admissions, if any, must be viewed in the most favorable aspect they will bear in support of the right of the party opposing the motion to a trial of the issues. Ginn v. Mac Aluso, supra.

Turning then to the record before us, we find that the affidavit of Henry Zarrow, vice-president of plaintiff's corporation, merely states that through investigation by a financial media, he was informed that the oil and gas leases were in the name of defendant and that defendant contracted in his name for the drilling of the wells and had a good financial rating and that affiant had no knowledge that defendant was not the actual purchaser of the supplies from plaintiff. The affidavit does not state that the supplies were actually ordred by defendant or that any of the dealings were with defendant personally. Defendant's pre-trial deposition shows he was president of Lost Canyon Oil and Uranium Company; that the leases on which the merchandise purchased from plaintiff was used, while held in defendant's name, were actually the...