White v. Friel

• Decision Date: 14 June 1956
• Docket Number: No. 149,149
• Citation: 123 A.2d 303,210 Md. 274
• Parties: Elmer J. WHITE and Augusta M. White, v. Samuel E. W. FRIEL, Jr., et al., Trading as Friel Lumber Co.
• Court: Maryland Court of Appeals

Page 274

210 Md. 274

123 A.2d 303

Elmer J. WHITE and Augusta M. White, v. Samuel E. W. FRIEL, Jr., et al., Trading as Friel Lumber Co.

No. 149.

Court of Appeals of Maryland.

June 14, 1956.

Z. H. Stafford and William H. Adkins, II, Easton, for appellants.

B. Hackett Turner, Jr., Centreville (Turner & Turner, Centreville, and J. Harry Cross, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The defendants appeal from a summary judgment against them for $2,849.71 and costs rendered by the Circuit Court for Queen Anne's County in a suit brought by the plaintiffs to recover for building supplies allegedly sold to the defendants.

The defendants-appellants, Elmer J. White, Sr. and Augusta M. White, are husband and wife. At some time in 1952 they obtained an option on a farm in Queen Anne's County, and at about that time Mr. White entered into possession of the farm. They acquired title to it as tenants by the entireties on May 4, 1953.

Mr. and Mrs. White and their son, Elmer J. White, Jr., owned all of the stock of a Maryland corporation known as the E. J. White Engineering Corporation (the 'Corporation') which had been incorporated in June, 1950. Mr. White, Sr. owned 3,000 shares, Mrs. White owned 500 and Mr. White, Jr. owned 500, for which they paid, in the aggregate, $4,000. They constituted the entire Board of Directors. Mr. White, Sr. was President, Mr. White, Jr. was Vice President, and Mrs. White, Sr. was Secretary. Who, if anyone, was Treasurer does not appear.

The nature and extent of the Corporation's business does not appear clearly. Evidently it was engaged in some form of engineering work and evidently it did not meet with financial success, for it went into receivership in January, 1954.

This suit was brought in 1954 by the plaintiffs, trading as Friel Lumber Company, against the individual defendants named above on an open account to recover the price of 'Materials supplied to repair house on farm and repair other buildings jointly held.' The items enumerated in the account appear to have been sold on various dates between June 13, 1952 and August 6, 1953, both dates inclusive, though it is not clear whether two sales in small amounts were made in May, 1952 or May, 1953. The great majority of the sales, in amount at least, were made in the period between early June and late October of 1952. There is no segregation whatever of the items or charges as between those for use in repairing the house, in constructing other buildings or in repairing other buildings.

The plaintiffs filed a motion for summary judgment with their declaration. The affidavit in support of the motion was made by one of the plaintiffs. It showed that the affiant was a partner in the plaintiff firm, and stated that he was 'competent to testify to the matters hereinafter set forth,' and that he 'made oath, on personal knowledge, in due form of law, that there is justly due and owing by Elmer J. White and Augusta M. White, his wife, the Defendants, * * * to the Plaintiff, Friel Lumber Company, for lumber and building materials sold by the Plaintiff to the Defendants, the sum of * * * ($2,849.71), with interest from * * *, over and above all discounts, and without deduction or set off, to the best of his knowledge and belief.' (Italics ours.)

Each of the defendants pleaded the general issue pleas in response to the declaration, and each of them filed an answer to the motion for summary judgment. Each of the answers categorically asserted that the defendant 'had never requested, contracted or ordered nor received from the Plaintiff the material and supplies set forth in the Plaintiff's declaration but that the said material and supplies were ordered, contracted and delivered to the E. J. White Engineering Corporation by the Plaintiff and that the Plaintiff has so billed said Corporation for said materials and goods.' The affidavits supporting these answers recited that the affiant 'made oath in due form of law that the aforegoing facts are true to the best of his [or her] knowledge and belief.' (Italics ours.) Neither of these affidavits recited that it was made on personal knowledge, and neither stated affirmatively that the affiant was competent to testify to the matters stated therein. We may assume that the defendants necessarily had personal knowledge of whether they had or had not ordered the materials and were competent to testify with regard thereto, but two deficiencies remain in their affidavits. One is that they contained no affirmative showing, as required by Summary Judgment Rule 2, Gen.Rules Practice Procedure, Part Two, Subdivision IV, Rule 2, that the affiants were competent to testify with regard to the deliveries to the Corporation or with regard to the plaintiff having billed the goods to it. The other is that an affidavit to the effect that an allegation is true to the best of one's knowledge and belief is not a sufficient affidavit under the Rule just cited. Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232.

The plaintiffs urge strongly the defects in the defendants' affidavits in support of their answers, but their own affidavit in support of their motion is open to the second objection to the defendants' affidavit, for it is qualified by the almost identical phrase, 'to the best of his knowledge and belief.' Since the plaintiffs' motion was filed before the defendants had pleaded, an affidavit in support of their motion was required under Summary Judgment Rule 1(b), and this affidavit is also insufficient under Fletcher v. Flournoy, supra.

After the defendants had pleaded to the declaration and had filed their answers to the motion for summary judgment, the plaintiffs proceeded to take the defendants' depositions. Their use is permissible in connection with a motion for summary judgment under Summary Judgment Rule 2. The plaintiffs did not thereafter file any new motion for summary judgment, nor does any renewal of the original motion appear to have been made; and we may assume that, in this case, no such action would have been necessary if their original motion had been sufficient. Frush v. Brooks, 204 Md. 315, 104 A.2d 624, 104 A.2d 624.

The defendants do not appear to have challenged the sufficiency of the plaintiffs' motion in the Circuit Court, and it was evidently treated by that Court as being sufficient. It appears that the case was decided by the Circuit Court on the plaintiffs' motion and the defendants' depositions. If the plaintiffs had not filed their motion with the declaration and had waited to do so until after the defendants had pleaded and their depositions had been taken and filed, an affidavit in support of a motion by the plaintiffs for summary judgment might not have been required, and the Circuit Court disposed of the case as if this had been the situation. We shall do likewise. Cf. Hamburger v. Standard Lime & Stone Co., 198 Md. 336, 84 A.2d 74. On that basis, the principal question is whether or not the depositions are sufficient to support a summary judgment for the plaintiffs.

In their depositions, each of the defendants denied having made any purchases as individuals of materials from the Friel Lumber Company, except some small items which Mrs. White had purchased and had paid for in cash. Mr. White testified that, with those exceptions, all of the purchases were made by the Corporation.

Mrs. White's tesimony indicated almost complete ignorance as to whether or not the materials had been purchased by or on behalf of the Corporation. She testified as to the respective numbers of shares of stock of the Corporation owned by herself, her husband and their son, as to when the Corporation was organized, as to who were its directors and officers, and with regard to corporate meetings. Though she was the Secretary, she seems to have been such in name only. She did not keep the minutes. She said there were no resolutions relating to the building and Mr. White's testimony supported hers on this matter. In reply to a question whether she was familiar with the contract business carried on by the Corporation, she answered that she 'was familiar to the point of giving money to it and paying bills, that's all.' She also testified that she was away in Florida while a 'block building' which was to be used for the Corporation's engineering business was being built, that she didn't know it was being built until she came home, that her husband had said that he 'was going to have to build a building to use,' and that she supposed it was to be on the farm. She said that she did not know how it came to be built before she and her husband acquired title to the farm, and she denied knowledge that her husband was going to buy materials from the Friel Lumber Company to construct the engineering building and denied ever having gone to the Friel place of business with her husband when he was ordering materials. She admitted knowing that he had been buying all of his lumber from Friel 'ever since we had been in business.' She also testified that all bills received from the Friel Lumber Company were directed to the E. J. White...