Wunnicke Finance Co. v. Tupper, 3062

• Decision Date: 17 July 1962
• Docket Number: No. 3062,3062
• Citation: 373 P.2d 142
• Parties: WUNNICKE FINANCE COMPANY, a Wyoming Corporation, Appellant (Defendant below), v. Gerald D. TUPPER, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 142

373 P.2d 142

WUNNICKE FINANCE COMPANY, a Wyoming Corporation, Appellant (Defendant below), v. Gerald D. TUPPER, Appellee (Plaintiff below).

No. 3062.

Supreme Court of Wyoming.

July 17, 1962.

Brooke Wunnicke, Cheyenne, for appellant.

Richard F. Pickett, of Loomis, Lazear & Wilson, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action in which the plaintiff Gerald D. Tupper sought to recover an amount due him in connection with the collection of a note due to the defendant Wunnicke Finance Company. Plaintiff alleged in his complaint that the defendant employed Sandra D. O'Connor, a practicing attorney at Glendale, Arizona, to enforce collection of a promissory note which had previously been executed by David C. Sharkey and C. A. Sharkey, and agreed to pay a contingent fee of one-third of the amount collected; that on June 19, 1959, Sandra D. O'Connor withdrew from the practice of law and the plaintiff, an attorney at law, acquired her account to the Sharkey note; that with the knowledge and consent of defendant, plaintiff continued to prosecute the action against the Sharkeys which was then pending in an Arizona state court; that on November 30, 1959, while the action was pending, defendant accepted payment of the note in full from the Sharkeys; and that plaintiff has not been paid the contingent fee of one-third of the amount collected. He accordingly asked the amount due him.

The defendant Wunnicke Finance Company, appellant herein, in its answer substantially alleged as follows: It admitted the employment of Sandra D. O'Connor as mentioned in the complaint on the terms above mentioned. Suit was filed in May of 1958 by Sandra D. O'Connor against the parties executing the note. On September 18, 1958, the attorney advised against taking judgment at that time. On May 28, 1959, Sandra O'Connor notified defendant by letter that she was withdrawing from the practice of law effective June 19, 1959 and that the plaintiff would replace her in the firm, that Mr. Tupper was ready to assume further prosecution of the Sharkey action in defendant's behalf, and that defendant was to advise the writer of defendant's wishes. On September 29, 1959, defendant received its first communication from plaintiff advising that there would be some delay before the matter could be brought to trial. On October 2, 1959, defendant wrote plaintiff requesting him to secure judgment against David Sharkey. Defendant learned of David Sharkey's whereabouts and on November 30, Sharkey paid the sum of $450 which was accepted by defendant in full settlement of the amount due, and defendant alleged that plaintiff was negligent in connection with the collection here in question and so was not entitled to any fee.

The action herein was commenced on October 4, 1960, and on December 30, 1960, the plaintiff filed a motion for summary judgment and attached thereto an affidavit executed by the plaintiff Gerald D. Tupper and the correspondence had in connection with this matter. The affidavit alleged in substance the fact that Sandra D. O'Connor withdrew from her law firm of Tobin and O'Connor and that plaintiff took her place; that some correspondence was had between the parties, some of which will be set out hereafter in full; that the makers of the note paid some of the money due on the note and that one-third of that was paid to Mrs. O'Connor. The affidavit also stated that affiant filed a request to put the action above mentioned 'on the short cause calendar' so as to expedite the trial thereof, but that this request was controverted by an affidavit of defendant's counsel and as a consequence trial of the matter would be delayed for some time. The affidavit continued, 'Since there would be a delay of approximately fourteen to twenty months prior to trial, I determined that judgment might be obtained by obtaining answers to certain interrogatories and taking the deposition of one of the defendants and accordingly prepared the interrogatories and submitted them to the Defendant for answer. Counsel for one of the Defendants informed the deponent that Mr. Cletus A. Sharkey had been seriously burned and would be unable to answer these interrogatories for some time. Subsequently, I again contacted Defendant's counsel and informed them that I would bring an order to show cause requiring the Defendant to answer the interrogatories and move to strike the answer and obtain judgment in the event the interrogatories were not answered. Thereafter, Defendant's counsel informed me that because of the pressure being applied by depondent, the Defendants, Mr. and Mrs. Cletus A. Sharkey, had forced payment of the balance of the note by the Co-defendants, their son and daughter-in-law.' (Italics supplied.) The affidavit further stated that the note was paid in full and plaintiff asked for one-third of the amount collected. No answer or affidavit was filed by defendant subsequent to the filing of the motion for summary judgment.

The motion for summary judgment was sustained, and a judgment was entered in favor of plaintiff in the sum of $150. From that judgment defendant has appealed.

1. Inasmuch as a special attack is made on the portion of the affidavit of plaintiff above italicized, it may be well to refer to that matter at this time. Counsel for appellant argues that under Rule 56(e) of the Rules of Civil Procedure supporting affidavits shall be made on personal knowledge and shall be such to which the affiant could testify. Counsel says that under this rule the above italicized statement would not be admissible at a trial because it was self-serving and hearsay. The contention is too broad. The first part of the statement states what the affiant did. He stated facts within his knowledge to which he was able to testify. Counsel's objection to that part of the statement is clearly not well taken. The last part of the statement is objectionable because it is hearsay. For the purposes of this case the last part of the statement may be disregarded without affecting the results, but it may be mentioned that it is not at all improbable that what plaintiff in the case did as above mentioned was largely or partially responsible for the payment of the $450 above mentioned in settlement of the controversy.

2. Counsel for the appellant contends that no contractual relation between plaintiff and defendant ever existed; that if plaintiff performed any services on behalf of the defendant they were recoverable only under quantum meruit and that no quantum meruit...