Universal Printing Co. v. Sayre & Fisher Co., 34814
| Decision Date | 23 October 1973 |
| Docket Number | No. 34814,34814 |
| Citation | 501 S.W.2d 180 |
| Parties | UNIVERSAL PRINTING COMPANY, a Missouri corporation, Plaintiff-Respondent, v. SAYRE AND FISHER COMPANY, a New Jersey corporation, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for plaintiff-respondent.
Gerald J. Bamberger, St. Charles, for defendant-appellant.
Plaintiff-respondent, Universal Printing Company, instituted this action of February 1, 1972 to recover a sum due on two promissory notes, from the defendant-appellant Sayre and Fisher Company. The trial court granted plaintiff's motion for summary judgment; defendant appeals. We affirm.
The petition in two counts alleged that on or about December 1, 1971 the defendant by its duly authorized agents made and delivered to the plaintiff its promissory notes in the amounts of $3,500.00 and $1,500.00 respectively bearing six per cent interest and that no part of the notes had been paid.
Later, plaintiff filed a motion for summary judgment and an affidavit of the secretary-treasurer of the plaintiff stating that he has personal knowledge that the defendant by its duly authorized agents made and delivered the notes, and that no part of the notes has been paid.
Thereafter, Sayre filed its answer generally denying the allegations of the petition and affirmatively pleaded that 'any document which may have been signed by it was executed without consideration.'
An affidavit in opposition to plaintiff's motion for summary judgment was later filed by Tom Shipton, the secretary of Sayre, stating, in part,
On June 28, 1972 the motion for summary judgment filed by plaintiff was heard and submitted. The next day the trial court granted the motion and rendered judgment against Sayre on both notes for the amount of the notes plus interest, amounting to $3,832.50 and $1,640.20 respectively. After setting aside its order of June 29, the court on July 12, 1972 again sustained the motion for summary judgment after finding that the affidavit in opposition to the plaintiff's motion was 'not germane'. This appeal followed.
Sayre presents one point on this appeal. It urges that the trial court erred in sustaining the plaintiff's motion for summary judgment because the pleadings and affidavits on file did not amount to unassailable proof that plaintiff was entitled to judgment as a matter of law.
The respondent, Universal Printing Company, on the other hand contends that Sayre's counter-affidavit does not raise a genuine issue of material fact, and Sayre cannot, at this state of the proceedings, attack the sufficiency of the plaintiff's affidavit for the reasons that 1) absent a motion to strike, formal defects in the plaintiff's affidavit are waived, and 2) by denying generally, rather than specifically, the allegation on the plaintiff's petition relating to the authority of the agent of the defendant to make the notes, failed to put in issue the lack of the agent's authority under Rule 55.25, V.A.M.R. and § 400.3--307, RSMo, V.A.M.S.
Rule 74.04(A), V.A.M.R. provides that '(a) party seeking to recover upon a claim . . . may . . . move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.' A summary judgment shall be rendered '. . . If the pleadings, depositions, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.' Rule 74.04(c). 'In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.' Rule 74.04(h); Stanturf v. Sipes, 447 S.W.2d 558, 560 (Mo. 1969). The procedure, established in 1960 in Missouri, is to separate what is formal or pretended from what is genuine and substantial so that only the latter may subject a party to the burden of a trial. The appellate court, as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered. Cooper v. Finke, 376 S.W.2d 225, 228 (Mo. 1964). And since the procedure is regarded as a drastic remedy, caution should be taken in utilizing it. Cooper v. Finke, supra.
Under these general principles, summary judgment may properly be rendered only when the pleadings and other papers on file establish 1) that there is no genuine issue as to any material fact and 2) that the moving party is entitled to judgment as a matter of law.
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