Weichman v. Vetri

WILSON, J.

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. (A copy of the contract is annexed to and made a part of the complaint. It is signed by defendant Vetri but not by Cox.) (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 otherAvise.

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 Avas based on a written contract

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