Opinion
5-15-1950
COYNE v. KREMPELS et al. Civ. 17164.
Jesse A. Hamilton and Joseph T. Forno, Los Angeles, for appellant. Jerrell Babb and Joseph L. Fainer, Los Angeles, for respondent.
COYNE
v.
KREMPELS et al.
May 15, 1950.
As Modified June 2, 1950.
Hearing Granted July 13, 1950. *
Jesse A. Hamilton and Joseph T. Forno, Los Angeles, for appellant.
Jerrell Babb and Joseph L. Fainer, Los Angeles, for respondent.
SHINN, Presiding Justice.
This is an appeal by Michael Krempels from a summary judgment in favor of A. B. Coyne on a cause of action for damages for breach of contract. On the motion of Coyne the court struck out the answer of Krempels and rendered judgment against him for the sum of $4,000 and costs.
The facts as disclosed by the pleadings and affidavits are the following: Krempels owned a bus; it was turned over to Coyne, who agreed to pay Krempels $4,000 within five days and a balance of $500 when he had made a sale of the bus; Krempels, not having received any money, brought suit on the agreement and caused the bus to be attached. The parties thereafter agreed in writing that Krempels would cause the bus to be stored at a service station where it could be shown and demonstrated to prospective buyers; Coyne was given the right to sell the bus within a period of 60 days, and the right to retain any sums received in excess of $4,500 which, it was agreed, Krempels would receive over and above any brokerage fees or expenses if a sale was effected by Coyne. This agreement appears to have been arrived at as a means of settlement of the Krempels suit. Although Krempels caused his attachment to be released, the bus was not parked at the service station, and it was not sold by Coyne. The present action for damages was instituted by Coyne who alleged that Krempels had refused to allow him to show or demonstrate the bus, that he, Coyne, had within the 60 day period procured a buyer, ready, willing and able to purchase the bus for the sum of $8,500, and that he had been damaged in the sum of $4,000. Krempels filed an answer in which he denied that plaintiff 'procured a buyer ready, willing and able to purchase said bus for the sum of $8,500,' and alleged that Coyne demanded that the bus be delivered to his home, together with the certificate of ownership, and refused to comply with the agreement upon any other terms. It was also alleged 'that plaintiff has at no time produced a buyer ready, willing and able to pay the sum of $8,500 or any other sum for said bus;' Coyne thereafter filed an affidavit in which he averred 'that during the 60 days following June 16, 1948, effective date of said written agreement, plaintiff has had several buyers who agreed to purchase said bus, subject to examination, demonstration and production of certificate of title, at a price and upon conditions which would have netted this plaintiff $4,000.' Coyne also caused to be filed the affidavit of one John E. Miller who stated on information and belief that Coyne found four prospects who were ready, able and willing to purchase the bus for $8,500, 'subject only to said purchasers seeing said bus to observe whether or not it was as represented and the testing and operation of same.' These affidavits were made the basis of plaintiff's motion for summary judgment. Defendant did not file an affidavit. The ground of the motion was 'that there is no defense to the action,' and not that it was a sham answer, insufficient upon its face. See section 453, Code of Civil Procedure.
It is unnecessary to discuss more than one aspect of the showing made by plaintiff, in order to demonstrate its insufficiency. Plaintiff was not entitled to a summary judgment unless the facts stated in his affidavits were sufficient to entitle him to a judgment. Code Civ.Proc. sec. 437c. They were clearly insufficient. Defendant's answer alleged that plaintiff had not produced a purchaser for the bus at any price and asserted breach of the agreement by plaintiff. The affidavit of plaintiff asserted only that he had some unnamed prospects, who would have bought the bus for $8,500 if, after an examination and a demonstration of its capabilities, they thought it was a good buy at $8,500. It was not alleged that he ever notified defendant that he had any such prospects. There was no showing of any sort tending to prove that any of the alleged prospects would have been pleased with the bus and willing to buy it after they had examined it and ridden in it. The inadequacy of this showing is so clear as to require no further comment.
It appears to be the contention of respondent that he was entitled to have his motion granted by default in the absence of an affidavit filed in support of the answer. The point is not well taken. Defendant's verified answer, containing the specific denials and allegations we have mentioned, was itself evidence of a valid defense. In the absence of any showing that it was a sham answer, it was not required to be supported by additional affidavits. Although a defendant resisting the motion must make a showing by affidavit of a good defense, the law does not require idle acts, and we think the verified answer was sufficient. It alleged specifically plaintiff's refusal to perform under the contract. A separate affidavit repeating these allegations would have served no purpose. The answer denied that plaintiff had found a purchaser ready, able and willing to purchase the bus. This denial was sufficient to put plaintiff on his proof. We do not see how defendant could have stated anything further by affidavit with respect to plaintiff's alleged unnamed prospects. More might have been required of defendant if plaintiff had alleged evidentiary facts which were not specifically denied by the verified answer. An answer which sets up a good defense should not be stricken out except upon a clear showing that the defense is not asserted in good faith. Where, as here, the defendant has set up by verified answer specific facts which would constitute a good defense to the action, and has denied specifically the allegations upon which plaintiff depends for a recovery, the case is one of the credibility of witnesses for trial on the merits, and a summary judgment should not be granted. Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264; U. S. Fidelity & Guar. Co. v. Sullivan, 93 Cal.App.2d 559.
Defendant made a motion under section 473, Code of Civil Procedure, to vacate the order striking out the answer and granting summary judgment. New attorneys made this motion. It was supported by the affidavits of defendant and his original attorney and was accompanied by a proposed amended answer. Affidavits in opposition were filed on behalf of plaintiff. It is not necessary to go into the merits of this motion further than to say that defendant made a strong showing for relief and we think the motion should have been granted. Defendant gave notice of appeal from this order. Our conclusion that the appeal from the judgment should be sustained renders the appeal from the order moot, and it should be dismissed.
The judgment is reversed and the appeal from the order denying a motion to vacate the judgment is dismissed.
WOOD and VALLEE, JJ., concur. --------------- * Subsequent opinion 223 P.2d 244.