Perrin v. Countryman

GRIFFIN, J. This action was instituted by plaintiffs, general excavating contractors, against defendant alleging in the first cause of action of their complaint that there was due from defendant $598.23 for services performed, and in a second cause of action that on July 23, 1950, defendant executed his promissory note in favor of plaintiffs for $5,500 and failed to pay it when due. Defendant was served personally with process and a writ of attachment was levied on his real property. On January 29, 1952, default was entered by the clerk at plaintiffs’ request, and on February 1st judgment by default was entered for the amounts claimed plus interest and reasonable attorneys’ fees fixed at $750.

An affidavit of defendant’s attorney, in support of a motion to set the judgment aside, recites that he was consulted by defendant after service upon him of the summons and complaint and that between said time and the entry of default there were no negotiations between him and counsel for plaintiffs except telephone contacts to verify extensions of time to answer which agreements were negotiated between [594]plaintiffs and defendant personally; that on January 15,1952, counsel for plaintiffs, at affiant’s suggestion, wrote him a letter granting a continuance until 5 p. m. January 21st, and stated that he would declare a default if an escrow was not opened and certain funds deposited therein. A further continuance for the normal period of time of the escrow was to be granted if plaintiffs’ attorney did not hear from affiantin time to comply with the above suggestion and it was agreed that if he did not so comply, plaintiffs’ attorney was to feel free to apply for a default judgment. Affiant then alleged that the provisions of this letter were superseded by further negotiations between plaintiff Perrin and the defendant personally ; that on January 21st, affiant contemplated the filing of a demurrer but it was not filed because of some agreed extension between plaintiff Perrin and the defendant; that on January 31st, counsel for the plaintiffs wrote defendant’s counsel about paying the claim; that in this letter he stated that counsel for defendant agreed to call counsel for plaintiffs and notify him of the decision; that he since learned that instead of making the financial arrangements agreed upon, counsel for defendant did, on the same day, attempt to file an answer; that fortunately he had previously taken a default. He therein stated that he had given many extensions of time to accommodate his client upon a representation of immediate payment of the amount prayed for; that he concluded that the delaying tactics of defendant were not in good faith and were made for the purpose of delay; that he could not see what meritorious defense there was to the note, which was given in renewal of a former note for labor and materials; and that if defendant attempted to set aside the default he would oppose it. Affiant then stated that he replied to this letter on February 6th, reminding counsel for plaintiffs that virtually all of the negotiations in this respect were carried on by their clients personally, and claimed that there was some offset discussed by them resulting in a compromise figure; that the claim that affiant was about to file an answer was incorrect but that he did contemplate filing a demurrer but did not do so after some telephonic conversation with plaintiffs’ counsel; that he endeavored to file it on January 30th, since it was his understanding that no default would be taken until he was notified.