Weichman v. Vetri
| Decision Date | 27 October 1950 |
| Court | California Court of Appeals Court of Appeals |
| Parties | WEICHMAN v. VETRI et al. Civ. 17832. |
Jess F. High and Victor J. Obegi, Van Nuys, for appellant.
George E. Stoddard, Hollywood, for respondent.
This appeal presents the simple question whether a summary judgment shall be allowed to stand when defendant's answer denies all material allegations of the complaint and the denials in his response to the motion for summary judgment and to plaintiff's affidavits present a triable issue of fact and a defense to the cause of action. The answer to this question is that in such circumstances the summary judgment must be reversed. Strauss v. Strauss, 90 Cal.App.2d 757, 759, 203 P.2d 857; Gillespie v. Hagan, 94 Cal.App.2d 566, 571, 211 P.2d 9.
The complaint contains three counts: That (1) defendants became indebted to plaintiff's assignor by reason of a note or conditional sale contract in writing made, executed and delivered by them to such assignor for the purchase of certain machinery. (2) defendants became indebted to plaintiff's assignor on account of repair services furnished to defendants at their special instance and request; (3) there was an account stated between plaintiff's assignor and defendants on which account there was found to be due from defendants the total of the sums referred to in the first and second counts.
Appellant Cox answered and denied any indebtedness either for the purchase price of machinery or for repairs or for any other purpose; denied that he made, executed or delivered the contract set out in the complaint and denied his indebtedness in any sum whatsoever upon the account stated or otherwise.
Pursuant to section 437c of the Code of Civil Procedure plaintiff moved for a summary judgment in his favor on the ground that the answer did not state a good or valid defense to the action. The affidavit of plaintiff accompanying the motion alleged that the action was based on a written contract for the direct payment of money, that defendants were in default of payments due thereunder and, by the terms of the contract, the whole amount had become due and owing; that defendants Vetri and Cox were copartners operating a place of business and that the equipment covered by the contract was being used by them in the conduct of the business. The affidavit further recited that the answer admitted the execution and delivery of the contract and the acceptance of the benefits thereof. The latter statement is obviously false for the reason that the answer of appellant Cox not only did not admit anything but expressly denied the execution and delivery by him of the contract and denied any liability on his part thereunder.
In opposition to the motion an affidavit was filed on behalf of Cox setting forth that he was in no way connected with the signing of the contract and did not become associated with Vetri until August 1, 1949, whereas the contract had been executed by Vetri on November 9, 1948. The affidavit further recited that Cox never assumed in any manner the liabilities of Vetri and did not enter into any copartnership agreement with him; that the only interest Cox had in the restaurant operated by Vetri was through the placing by Cox of a liquor license on the premises.
The affidavit filed on behalf of plaintiff is not in compliance with section 437c of the Code of Civil Procedure in that it does not set forth the facts with particularity and does not show that the person who made the affidavit could competently testify to the facts therein alleged if he were sworn as a witness. The affidavit consists for the most part in conclusion of law or conclusions of...
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