White v. Luber

• Decision Date: 19 September 1958
• Docket Number: No. 2226.,2226.
• Citation: 144 A.2d 774
• Parties: Kenneth WHITE and Pollie L. White, Appellants, v. Harold E. LUBER, Appellee.
• Court: D.C. Court of Appeals

144 A.2d 774

Kenneth WHITE and Pollie L. White, Appellants, v. Harold E. LUBER, Appellee.

No. 2226.

Municipal Court of Appeals for the District of Columbia.

Submitted August 11, 1958.

Decided September 19, 1958.

Halcott A. Bradley, Washington, D. C., for appellants.

Solomon Grossberg, Irving B. Yochelson, Isadore Brill, and Alfred Burka, Washington, D. C., for appellee.

Before ROVER, Chief Judge, HOOD, Associate Judge, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § 11-776(b).

CAYTON, Acting Judge.

The trial court ordered summary judgment against defendants as makers of a second trust note, of which plaintiff claimed to be holder in due course. The judgment was granted after plaintiff had answered certain interrogatories, after pretrial, and after defendants had filed an amended answer. Defendants have brought the case here for review.

The complaint was in the usual form and recited that the payees of the note had endorsed it to plaintiff, that plaintiff was holder in due course and for value, and that the note was in default. The amended answer recited that the note had been given as part purchase price of a house they had bought through vendors' agent, Sidney J. Brown; that Brown had misrepresented the condition and value of the property "with such cunning and guile, that the defendants were fraudulently induced to execute this note"; also that they received no value for the note because Brown had later induced them to sell the property to him, he assuming the unpaid balance on the note. Defendants denied that plaintiff had paid "real value" for the note, and alleged on information and belief that plaintiff knew of Brown's misrepresentation when he acquired the note; they concluded their answer by stating, on information and belief, that

"* * * the plaintiff did not pay any ascertainable value for said note, or, if a purchase were made by plaintiff, it was with such excessive discount that plaintiff had knowledge or should have had knowledge of the failure of consideration therein to these defendants."

Defendants brought Brown into the case as third party defendant by a complaint which charged that in 1949 he had willfully, maliciously and fraudulently induced them to purchase another house and to sell him (Brown) this one, Brown agreeing to assume and pay the outstanding first and second trusts (the second trust being the one covered by the note involved in this suit), and relieve them (these defendants) of liability on the notes; that in violation of such agreement Brown defaulted and the second trust was foreclosed, resulting in a deficiency which became the subject matter of this suit.

Later defendants also obtained leave to bring in the payees of the note (Sherr and Schloss) as additional third party defendants and charged that such payees had full knowledge of the agreement made in their behalf by their agent Brown, but later repudiated it.

Though summary judgment is covered by Municipal Court Civil Rule 56, the briefs on this appeal do not discuss that Rule, or the decisions construing it or its counterpart, Federal Rules of Civil Procedure, Rule 56, 28 U.S.C.A. There are, of course, many such decisions, among them Cellini v. Moss, 98 U.S.App.D.C. 114, 232 F.2d 371; Dewey v. Clark, 86 U.S.App. D.C. 137, 180 F.2d 766; Turek v. Yellow Cab Co., D.C.MunApp., 131 A.2d 923; Smith v. Leventhal, D.C.Mun.App., 97 A.2d 139; Bowles v. Marsh, D.C.Mun.App., 82 A.2d 135.

These decisions, like many others, establish the basic approach to summary judgment procedure, which is that on motion for such judgment all doubts as to genuineness of fact issues and all inferences are to be resolved against the movant, and once it appears that there is a genuine issue of fact, summary judgment may not be awarded.

Dealing specifically with cases like this, where one party has exclusive or peculiar knowledge of the crucial facts, the courts have taken the altogether reasonable view that such party, rather than his opponent, should not only do the disclosing but also be subjected to cross-examination. Thus, in Cellini v. Moss, supra, it was said that because the essential facts must come exclusively from defendant, plaintiff should have the right to put him on the stand, and that defendant's demeanor may lead to inferences favorable to plaintiff, and hence summary judgment was improper. Citing Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967.

It has also been held that where facts were peculiarly within the knowledge of the defense and a matter such as good faith was involved, summary judgment should not be granted on the basis of a defense affidavit (though no counteraffidavit was filed), and...