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Lowe v. Hulliger

Superior Court of Delaware, Sussex County

October 3, 1951

LOWE
v.
HULLIGER.

Action by H. Wilson Lowe, trading as Lowe Brothers, against Henry H. Hulliger, trading as H. H. Hulliger, for rental due plaintiff under alleged lease of tractor trailer. On plaintiff's motion for summary judgment, the Superior Court, Layton, J., held that certain matters contained in plaintiff's request for admissions submitted to defendant before trial had to be taken as admitted facts upon defendant's failure to file answer within 10 days of service of request as required by Rules of Superior Court.

Motion granted.

In action for rental due under lease of tractor trailer, defendant's purported defense set up in answer to plaintiff's request for admissions to effect that a third party signed the lease as principal rather than as defendant's agent, was unavailing to defendant because it was a matter of avoidance which should have been pleaded as an affirmative defense and because it was asserted in answer to plaintiff's request for admission of facts filed too late. Rules of Superior Court, rules 8(c), 33, 36.

Page 699

[46 Del. 332] Plaintiff filed a complaint on March 21, 1951 alleging that defendant entered into a lease with him for the use of a certain motor vehicle or tractor trailer at a rental of $337.65; that said rental had not been paid and demanding judgment in the amount of money just stated. On April 5, 1951 an answer was filed consisting of a general denial. On April 10, 1951 interrogatories were propounded to defendant seeking to bring out the details concerning the execution of the lease, its contents, the amount of rental stipulated and whether or not any of said rental had been paid. On June 22, 1951 a request for admission was filed under Rule 36 of the Rules of the Superior Court requesting [46 Del. 333] certain admissions by defendant of all details concerning the execution, contents, and rental provisions of said lease and the further fact that the rental stipulated for had not been paid. On July 2, 1951 defendant filed a purported answer to the interrogatories propounded on April 10, consisting of no more than an exact copy of the lease in question. On the same date, defendant filed an answer to the request for admissions of fact consisting of nothing but a reference to the copy of the lease contained in the answer to the interrogatories and a statement that Harry J. Truitt (who signed the lease as agent for defendant) was, in fact, the principal in the transaction.

Plaintiff has filed a motion for summary judgment.

W. Howard Thompson, Georgetown, for plaintiff.

Everett F. Warrington, Georgetown, for defendant.

LAYTON, Judge.

The answer to plaintiff's interrogatories was not under oath as required by Rule 33 of the Rules of the Superior Court. The purported answer to plaintiff's request for admissions of facts was filed more than ten days after service of the request upon defendant. Both answers must be disregarded for failure to comply with the clear provisions of the Rules just cited. Thus, the following matters must be taken as admitted facts because of the failure to answer the request for admission within ten days:

1. That a lease was executed on a regular form of lease headed H. H. Hulliger, Bridgeville, Delaware, December 16, 1949, between Lowe Brothers, Lessor, and H. H. Hulliger, Lessee.

2. That the said lease was signed by Harry J. Truitt, Agent of H. H. Hulliger, Lessee.

3. That the said lease provided for rental of certain motor vehicles owned by the plaintiff and described as an International truck, license no. Md. 6-787, and a Fruehauf semi-trailer, license no. Md. T3-212.

Page 700

4. That the said lease provided for payment to the plaintiff, [46 Del. 334] Lowe Brothers, in the sum of Three Hundred Thirty-seven Dollars and Sixty-five Cents ($337.65).

5. That no part of the rent has been paid.

The purported defense set up in the answer to the request for admissions to the effect that Harry J. Truitt signed the lease, not as agent, but as principal, was a matter of avoidance which should have been pleaded as an affirmative defense in defendant's answer, Rule 8(c)[1]. In any event, it is unavailing to defendant because it was asserted in the answer to plaintiff's request for admission of facts filed too late.

In the light of the admissions of fact above recited and by which defendant is now bound, I have no alternative but to grant ...


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