The principal issue here concerns the correctness of an order by a Superior Court judge granting the plaintiff's motion for summary judgment as to the defendant Edward J. Varrichione.
The plaintiff sued on a promissory note made by the defendant E.J.V. Drywall Co., Inc. (Drywall), to the order of the plaintiff, the Community National Bank (bank). The note was signed on the back by the defendants Edward J. Varrichione and Bernard K. Dawes. The bank moved for summary judgment which was ultimately allowed by a Superior Court judge as against all defendants. Defendant Varrichione alone has appealed the granting of that motion.
We summarize the facts as derived for the most part from the affidavit of an assistant vice president of the bank. The affidavit was filed by the bank in support of its motion for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).
By February 14, 1974, a prior indebtedness of Drywall to the bank had been reduced to $9,000. A new note was executed by Drywall in the amount of $9,082.50, the additional amount representing interest charges. At the insistence of the assistant vice-president this note was signed on the back by both Varrichione and Dawes in the assistant vice-president's presence. Above their signatures appear the words "Assenting to Terms and Waivers on the Face of this Note." Subsequently, Drywall defaulted
On July 15, 1974, the bank brought an action against the defendants on the note asserting in its complaint that Drywall, Varrichione and Dawes were jointly and severally liable to it for the full amount of the note plus interest and costs of collection, including reasonable attorneys' fees.
Each defendant answered separately, Varrichione proffering six defenses: (1) a general denial; (2) an assertion that his signature was not genuine; (3) a denial of the incorporation of the bank and of Drywall; (4) a claim of payment in full; (5) a charge that the plaintiff failed to make a demand for payment; and (6) an argument that the assent to the terms and waivers on the face of the note was not an indorsement thereof for which he is liable.
On August 28, 1974, the bank moved for summary judgment against all defendants, which motion was supported by the affidavit of the assistant vice-president, referred to above. In his affidavit in opposition to the bank's motion for summary judgment, Varrichione did not dispute the bank's statement of facts, although he drew different conclusions from them and made the following statements: (1) he did not receive any of the proceeds of the note; (2) there was no consideration for the note between himself and the bank; (3) his signature on the back of the note was solely for the accommodation of the bank; and (4) the language preceding his signature on the back of the note created no guaranty, nor did it make him a maker or comaker of the note, "but was a mere assent to the terms contained in the Note and established
Thereafter the bank's motion for summary judgment was allowed after hearing, and Varrichione appealed. There was no error.
1. We have not had occasion since the Massachusetts Rules of Civil Procedure became effective on July 1, 1974, to express our thoughts on Rule 56, which by its terms permits any party to a civil action to move for summary judgment in his favor on all or any part of a claim, counterclaim, cross-claim, or action for declaratory judgment. Mass. R. Civ. P. 56 (a) and (b), 365 Mass. 824 (1974). The instant appeal presents us with an especially appropriate case in which to do so.
Some preliminary comments are in order. We view Rule 56 as a welcome, progressive addition to judicial procedure in this Commonwealth. "It creates an excellent device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved." 3 W.W. Barron & A. Holtzoff, Federal Practice and Procedure (Rules ed.) § 1231, at 96 (Wright rev. ed. 1958). See 10 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2712, at 370 (1973). The motion for summary judgment is in order and "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (emphasis added). Rule 56 (c), 365 Mass. 824 (1974). When appropriate, of course, summary judgment may be entered against the moving party, and, furthermore, may be rendered as to certain issues only, leaving other issues to be tried to the jury because they present a genuine issue of material fact. Ibid.
When the parties utilize affidavits to support or oppose a motion under Rule 56, these affidavits must follow a
A body of law has developed under the Federal counterpart to our Rule 56 which we think has generated some misunderstanding regarding summary judgment. This misunderstanding has been explained in a manner on which we, perhaps, cannot improve: "In a large sense [summary judgment] has been the victim of its own overwhelming popularity.... Opinions denying [motions for summary judgment] give an inaccurate impression that
This court, in decisions under G.L.c. 231, §§ 59 and 59B, the limited predecessors to our Rule 56,
The order granting summary judgment against Varrichione thus will be upheld if certain factors converge to convince us that the trial judge was ruling in this case on undisputed facts and, of course, that his ruling was correct as matter of law. The factors mentioned are (1) that the bank has shown through its pleadings and affidavit that no genuine issue of Varrichione's liability on the note is raised here, and (2) that Varrichione has not presented enough countervailing details to demonstrate that material facts exist which, taken for our purposes
2. The bank's affidavit
The bank showed, prima facie, that Varrichione was liable on the note. It alleged the necessary elements of a valid execution, Varrichione's signature as an indorser, and default in payment by the maker. Had Varrichione remained mute in the face of these assertions it is clear that granting summary judgment against him would be the proper course for the trial judge to take. The trial judge would have been justified in expecting to find, in Varrichione's counteraffidavit, some reference to the circumstances surrounding his relationship with the bank which would raise a conflict in the evidence to be produced at trial. Varrichione, in contrast, did not meet his burden of showing that his signature on the note was not an indorsement, nor has he sufficiently alleged specific facts relating to the transaction which would prompt us to say that he has established a genuine issue as to whether he was merely an accommodation indorser for the benefit of the bank.
In his brief, Varrichione argues that contradictory inferences may be drawn from the undisputed facts of the case, thus making summary judgment inappropriate. Among these alleged contradictory inferences Varrichione
The result reached by the trial judge, as well as the result we reach here, would undoubtedly be different if specific facts regarding the contention that Varrichione signed the note solely as an accommodation indorser for the bank's benefit had been alleged.
In the absence of any specific facts relating to the dealings between the bank and Varrichione or the circumstances surrounding the signing of the note in question, which would raise the accommodation issue, we turn to other provisions of G.L.c. 106 for guidance as to the import of Varrichione's signature and the effect, if any, of the language employed by the bank on the back of the note.
As an indorser, Varrichione contracted to pay the instrument according to its tenor at the time he signed. G.L.c. 106, § 3-414. The note explicitly provides for a waiver of presentment, protest, or notice of dishonor or delay therein, and on its face makes this waiver applicable to indorsers, among others. See G.L.c. 106, § 3-511 (2) (a).