Kimber v. Jones

FOX, J.

Defendant appeals from a summary judgment in an action on a promissory note.

On November 25, 1952, plaintiff, Don C. Kimber, filed a complaint alleging that he was the assignee and lawful holder of a promissory note executed by defendant Nelson E. Jones in the sum of $12,214.81, running in favor of Lee P. Hill, plain

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tiff’s assignor. A copy of this note, dated June 15, 1952, and maturing in 90 days, was attached to the complaint. It is alleged that payment has been made on the note in the amount of $6,714.18, leaving an unpaid balance of $5,500. Plaintiff prayed judgment in this amount and for attorney’s fees as provided by the note in' event of suit.

The answer denied that there was any balance unpaid on the note, and also denied, for want of information and belief, that plaintiff was the assignee and lawful holder of the note. As an affirmative defense, defendant set up a partial failure of consideration. Defendant alleged thereunder that by virtue of fraudulent misrepresentations as to the quality of certain lumber belonging to Lee P. Hill, made by Robert Creelman, Hill’s agent, namely that it was Number One common and better, defendant was induced to purchase said lumber, in part payment of which transaction he had executed the promissory note running to Hill. He alleged that Hill and Creel-man knew that “approximately one-half thereof was of a grade poorer and less valuable than Number One common grade or better.”

Thereafter plaintiff moved for summary judgment on the ground that defendant’s defense of failure of consideration was without merit and spurious. In support thereof, he filed three affidavits executed by Robert Creelman, Lee P. Hill and James Ramsdell, Hill’s attorney, together with documents which were appended to each affidavit. Creelman’s affidavit was essentially to the effect that he represented that the 140,000 feet of lumber which was delivered by Hill to Jones would be ‘‘ Grade 2 common, and better. ’ ’ Concomitant with this transaction, Creelman states he made certain business arrangements with defendant, pursuant to which he became employed by defendant Jones as sales manager of the latter’s company. There is attached a certificate of inspection issued at the shipping point covering 25,000 feet of the lumber, which Creelman avers was delivered to defendant, and asserts that similar certificates for the balance of the lumber were also issued and delivered to defendant. The attached inspection certificate indicates that some of the lumber was classified as Number Two common, and a part was Number One common. The affidavit also states that an inspection at destination was made by one E. L. Primm, confirming the shipment to be grade 2 and better, and copies of Primm’s reports were sent to Jones, who also personally inspected at least one carload. Creelman asserts that defendant informed him that if Hill failed to