Faulkner v. Taylor

SCHOTTKY, J. Edward J. Taylor and Butte Steel Erectors, Inc., a corporation, sued herein as Faulkner and Taylor, Inc., a corporation, have appealed from a judgment in favor of Harold A. Faulkner and Dorothy B. Faulkner after the latter’s motion for summary judgment was granted.

The action was brought by the Faulkners to recover the balance allegedly due on a note executed by Edward J. Taylor as an individual and by Faulkner and Taylor, Incorporated. The answer alleged that the note was fully paid and discharged as to Edward J. Taylor individually, and that the Faulkners agreed with the corporation that the note could be discharged at the rate of $100 per month, including interest.

Thereafter a motion for summary judgment was made by the Faulkners. The affidavit of Harold A. Faulkner in support of the motion alleged that on May 14, 1957, he assigned 50 shares of the common stock of Faulkner and Taylor, Incorporated, to Edward J. Taylor; that at the time of the assignment Taylor promised to pay Faulkner $5,000 for the assignment ; that on May 16, 1957, Faulkner gave Taylor a receipt for $5,000, but that at the time the receipt was given Faulkner did not receive any money; that as a part of the same transaction Faulkner loaned the corporation $5,000 and the corporation gave Faulkner its receipt for the sum; that a note was executed by the defendants as consideration for the loan; that the loan called for payments of $100 a month, including interest at 6 per cent, and that the sum of $1,652, plus interest from May 15, 1959, was due.

The affidavit in opposition executed by Edward J. Taylor, [490]individually, stated that when he received the 50 shares of stock he executed a note for $5,000; that this note was paid; that he received a receipt from Harold J. Faulkner dated May 16, 1957, which receipt discharged him from all obligations under the note dated May 15, 1957; that it was agreed between the parties that the $5,000 receipted for by the corporation was to be paid back by the corporation and not by Taylor; that in fact the corporation did not receive the $5,000 for which the Faulkners gave a receipt; and that the “affiant should be required only to pay the reasonable value of the shares. ...”

The affidavit filed on behalf of the corporation (actually filed by the successor to Faulkner and Taylor, Inc.) stated that the corporation executed the note and did pay the sum of $3,448, plus interest, but that the corporation never did receive the sum of $5,000 as shown by the receipt which was part of the affidavit filed by Faulkner.