Investors Security Co. v. Bohanon

Tayloe, O. This is an appeal from an order striking out an answer and counterclaim as sham and frivolous. Defendant is engaged in the business of excavating and marketing sand and gravel. In October, 1922, he entered into a contract with plaintiff for the purchase of six lots in the city of Minneapolis for the sum of $7,000 of which he paid $500 in cash and for the remaining $6,500 gave four promissory notes of $1,625 each, payable respectively in one, two, three and *472 four years. It was understood that lie was buying tbe property for a sand pit and tbe contract gave bim tbe right to remove and sell sand as be saw fit, but required bim to make monthly payments to plaintiff of 25 cents per cubic yard for tbe sand so removed, such payments to be applied upon tbe purchase price. Defendant took possession of tbe property and operated it as a sand pit for about three years, and during this period made tbe payments required by tbe contract. Tbe sum of $211.25 paid on account of sand removed was credited on tbe note payable in 1925 before it was due. Nothing further was paid, and after tbe note became due this suit was brought to collect tbe remainder thereof. The amount due is admitted. Defendant alleged in bis answer that at tbe time of making tbe contract plaintiff represented that the property bad been explored for sand and gravel and contained 60,000 cubic yards of merchantable sand and gravel; that these representations were false and known to be false when made; that be bad removed 25,000 yards of sand and gravel; that tbe quantity remaining did not exceed 5,000 yards; and that tbe property would have been worth tbe purchase price of $7,000 if it bad been as represented but was worth only $3,000 in its actual condition at tbe time of tbe sale. He set forth bis claim for damages as a defense to tbe note and also asserted a counterclaim for tbe amount previously paid in excess of $3,000. In its reply plaintiff denied making any of tbe representations charged. In support of its motion to strike, plaintiff presented tbe affidavits of its three officers, each specifically denying that be bad made any of tbe representations charged in tbe answer. Tbe dealings with defendant were conducted on behalf of plaintiff by its president, and in bis affidavit be set forth in detail tbe negotiations which resulted in the contract and also tbe subsequent transactions between tbe parties under tbe contract. In bis opposing affidavit, defendant, by reference, made tbe allegations of tbe answer a part thereof and reasserted “that tbe plaintiff did represent to affiant that explorations bad been made and that there were sixty thousand (60,000) yards of sand therein.” *473 Plaintiff is a corporation and can act only through its officers or agents. ' Defendant’s affidavit is unsatisfactory in that it fails to show what officer or agent of plaintiff made the representations claimed, and fails to show anything as to when or where they were made, or the circumstances under which they were made, or the language used in making them. He contents himself with the bare statement that plaintiff, a corporation, represented that the property had been explored and that it contained 60,000 yards of sand. The pleadings are sufficient to raise an issue for trial, and therefore the answer cannot be stricken as frivolous. May it be stricken as sham? A sham answer is one good in form but false in fact. An answer may be stricken as sham where it appears that there is no substantial ground for asserting the existence of the facts constituting the alleged defense. “If the affidavits in support of the motion make a prima facie case of the falsity of the pleading, the motion will ordinarily be granted, unless the showing is met by counter-affidavits or other form of proof, free from evasion, which make it clear that there is an issue to be tried.” Knudson v. Pederson, 166 Minn. 360, 208 N. W. 8; Bank of Richards v. Sheasgreen, 153 Minn. 363, 190 N. W. 484; Towne v. Dunn, 118 Minn. 143, 136 N. W. 562. The present case approaches the border line, and if the trial court had sustained the pleading it is doubtful if this court would interfere. But the trial court declared the answer sham, and we are unable to say that it was not justified in holding that the showing made by defendant was evasive and failed to meet fairly the showing made by plaintiff. Each of the officers of plaintiff who had come in contact with defendant stated definitely and positively that he had made no statement or representation whatever concerning the quantity or quality of the sand on the property. We think that the showing made by plaintiff was sufficient to call upon defendant to disclose the officer or representative of plaintiff whom he claims *474 made the representations, and to show something as to how, when and under what circumstances he claims that they were made. Nothing of this sort was attempted. On the record as it stands, we feel constrained to sustain the order and it is affirmed.