{
  "id": 1719893,
  "name": "George W. MILLER et ux v. Leo HARDWICK et al.",
  "name_abbreviation": "Miller v. Hardwick",
  "decision_date": "1979-12-05",
  "docket_number": "CA 79-166",
  "first_page": "841",
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  "last_updated": "2023-07-14T22:44:49.696704+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Newbern and Pilkinton, JJ., concur.",
      "Judge Pilkinton joins in this opinion."
    ],
    "parties": [
      "George W. MILLER et ux v Leo HARDWICK et al"
    ],
    "opinions": [
      {
        "text": "Marian F. Penix, Judge.\nThis case was appealed to the Supreme Court of Arkansas and by that Court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).\nAppellees were granted summary judgment and from that judgment comes this appeal. The appellees do business as Hardwick Bros. Lumber Co. at Malvern. They sold home decoration articles and services to the appellants, the Millers, at Hot Springs. The Millers failed to pay the $4,392.11. Hardwick Bros, brought suit and attached to the complaint was an affidavit stating amount was owed. The Millers filed a general denial. Hardwick Bros, filed Interrogatories and Requests for Admission, which were answered. The Millers admitted there was a contract and did not dispute the contract price. However, the answers to the interrogatories did set out that not all of the goods received met the terms of the contract and there was at least partial lack of consideration. The affidavit of Miller specified those items which were not provided and those which were not satisfactory. From a pretrial hearing the court\u2019s order granted Millers \u201cthirty days to amend their answer to assert affirmative defenses and to more responsively plead.\u201d Hardwick filed motion for Summary Judgment alleging no genuine issue as to any material fact. Millers filed a response to the motion for Summary Judgment in which they asserted their Responses to the Interrogatories and Requests for Admissions adequately outlined the defenses which would be relied on at trial; namely, lack of consideration. The affidavit attached to the Millers\u2019 response to Hardwick\u2019s motion for Summary Judgment specifically set out the items with which Millers were dissatisfied and which did not meet the terms of the contract. The court granted Hardwick\u2019s motion for Summary Judgment. The judgment reads \u201c . . . the court considered the pleadings, the interrogatories, request for admissions , and answers thereto, the affidavits in support of and in response to the motion ...\u201d\nWhether the court based its finding on its assessment of the insufficiency of the pleadings or on the review of all the documents in the file, we find the decision to be erroneous and must be reversed. A Summary Judgment is an extreme measure. Justice is better served when cases are tried on their merits. Pleadings are for the purpose of informing all the parties what the issues are. Where there is no surprise or substantial prejudice the court can always, and often does, treat the pleadings as amended, to conform to the proof. Defects in pleadings are to be disregarded unless they substantially affect the rights of the adverse party. A variance between the pleadings and proof is not material unless it has actually misled the adverse party to his prejudice. Ark. Stat. Ann. \u00a7 27-1155 and 27-1160 (Repl. 1962). While the general denial did not apprise Hardwick of the Millers\u2019 defense, the response to the interrogatories provided this notice. These responses, which become a part of the record without objection, were evidence to be considered by the judge. Once these became evidence, the pleadings are treated as amended to conform to the evidence. Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672 (1969).\nAt the outset the appellees insist that Bonds cannot rely upon the asserted collateral agreement, because he failed to plead that defense in his answer. It is true that Bond\u2019s answer to the complaint was merely a general denial, plus special pleas not now relevant. But in response to the plaintiffs\u2019 requests for admissions of fact Bonds made this statement under oath: \u2018\u2018Defendant admits that a written memorandum of said agreement was made and that a copy is attached to the complaint . . . Defendant states, however, that said agreement was contingent upon the defendant\u2019s obtaining the purchase money from the Houston Milk Producers Credit Union.\u201d In the face of that assertion, and without rebutting it, the plaintiffs filed their motion for summary judgment.\nUnder the Federal Rules of Civil Procedure, from which our summary judgment statute (\u00a7 29-211) was copied, the better view is that affirmative defenses may, at least in some situations, be raised by affidavit as well as by answer. We agree with Moore\u2019s statement of the two views: \u201cThere is authority that defenses not pleaded in defendant\u2019s answer may not be raised by affidavits on his motion for summary judgment. This is highly technical and illiberal. Either the answer should be deemed amended to conform to the proof offered by the affidavits or a formal amendment permitted, the affidavits considered, and the motion for summary judgment decided under the usual rule pertaining to the adjudication of summary judgment motions.\u201d 6 Moore\u2019s Federal Practice \u00a7 56.11[3] (1966)\nSee also Warner v. Warner, 221 Ark. 939, 256 S.W. 2d 734 (1953); Smith v. Moschetti, 213 Ark. 968, 214 S.W. 2d 73 (1958).\nBy the responses to the interrogatories as well as the counter-affidavit, the Millers raised the defenses of lack of consideration or breach of warranty.\nArk. Stat. Ann. \u00a7 29-211 provides:\nThe judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . .\nUpon consideration of the pleadings, the responses to the requests for interrogatories, together with the affidavits, we believe there to be a material issue of fact. Hughey v. Bennett, 264 Ark. 64, 568 S.W. 2d 46 (1978); Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975); Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969); Mid-South Insurance Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S.W. 2d 873 (1967).\nReversed and remanded.\nNewbern and Pilkinton, JJ., concur.",
        "type": "majority",
        "author": "Marian F. Penix, Judge."
      },
      {
        "text": "David Newbern, Judge,\nconcurring. My concurrence in the result reached by the majority is reluctant. The majority opinion\u2019s statement of the facts is correct except that it omits to say the motion for summary judgment was filed after the 30 days given the defendants to amend had elapsed, and no amendment had been filed. I can conceive of a rationale that no material issue of fact remained to be decided, as this failure to amend was a waiver of defenses. I decline to go that far. However, I do wish to point out where I disagree with the majority in areas I feel to be important.\nFirst, the issue here is not whether the defendants have raised a defense of lack of consideration or an affirmative defense of breach of warranty. Rather, it is whether they have denied the correctness of the verified account filed with the complaint. This is an action on account as contemplated by Ark. Stat. Ann. \u00a7 28-202 (Repl. 1979). Lack of consideration is not a defense as it might be when the action is on a contract. See Cawood v. Pierce, 232 Ark. 721, 339 S.W. 2d 861 (1960), and McWater v. Ebone, 234 Ark. 203, 350 S.W. 2d 905 (1961), for cases showing the nature of this action. It is apparent the only defense, aside from affirmative defenses and set-offs which would have to be pleaded, is incorrectness of the account as stated.\nI would have agreed with the granting of the summary judgment but for one discovery response (which I assume was under oath) which denied that some minor items listed in the appellee\u2019s affidavit were actually supplied. That was just barely enough, in my view, to raise an issue of fact.\nSecondly, I cannot concur, in the context of an opinion evaluating the granting of a summary judgment, in a statement that \u2018 \u2018justice is better served when cases are tried on their merits.\u201d Such a statement implies we look askance at the summary judgment procedure. That is not the case. When there is no disputed fact which is material, under the applicable law, there are no merits to be tried, and it is wholly proper for a trial judge to apply the law summarily in those circumstances.\nIt was not improper for the trial judge to invite the defendants to amend their answer so that it either raised a defense to an action on account, which a general, unverified denial is not, or to plead affirmative defenses. The defendants here are just lucky the plaintiffs asked in their interrogatory whether the defendants denied the accuracy of the account.\nJudge Pilkinton joins in this opinion.\nMcWater v. Ebone, cited, above, suggests that a verified denial might be sufficient, but the record here shows the answer to have been unverified.",
        "type": "concurrence",
        "author": "David Newbern, Judge,"
      }
    ],
    "attorneys": [
      "George M. Callahan, for appellants.",
      "David M. Glover and G. Christopher Wolthall, for appellees."
    ],
    "corrections": "",
    "head_matter": "George W. MILLER et ux v Leo HARDWICK et al\nCA 79-166\n591 S.W. 2d 659\nOpinion delivered December 5, 1979\nReleased for publication January 9, 1980\nGeorge M. Callahan, for appellants.\nDavid M. Glover and G. Christopher Wolthall, for appellees."
  },
  "file_name": "0841-01",
  "first_page_order": 901,
  "last_page_order": 906
}