and the weight to be accorded it, collateral issues of fact which can be decided only by the jury on a trial of the issues of fact. The sufficiency of evidence becomes a question of law for decision by the court only when there is an absence of proof sufficient to support a claim or defense.
The defendant's denial of the essential allegations of the complaint raises an issue of fact. This denial casts upon the plaintiff 'the burden to establish ownership in itself, absolute or qualified, with a right of exclusive possession at the time of bringing the action'. Merchants' Securities Corp. v. Lane, 106 N.J.L. 169, 147 A. 385, 386; Pintenics v. Menwig, 113 N.J.L. 4, 172 A. 377, 378; Agency of Canadian Car & Foundry Co. v. Pennsylvania Iron Works Co., 3 Cir., 256 F. 339, 341. The evidence now before the Court, considered in the light most favorable to the plaintiff, may be legally sufficient to support the plaintiff's claim, but the legal sufficiency of the evidence may not be prematurely determined in advance of trial on a motion for summary judgment. The defendant's denial of the essential allegations of the complaint, even if there were no other defenses interposed, is a valid defense on which it has a right to be heard.
The defendant alleges by way of affirmative defense that property in the machines is not in the plaintiff but in a third party, to wit, Comfort Spring Corporation of Maryland. This is a valid defense and we cannot say at this stage that it is without merit. This defense, which is presumed to be denied by plaintiff, likewise raises a genuine issue of fact.
The defendant alleges that the third party purchased the machines from the plaintiff after certain preliminary negotiations had been concluded. It is clear from the present record that there was no formal written contract of sale. The contract of sale, if it is ultimately determined that there was such a contract, is in part oral and in part written; the written parts are embodied in the correspondence between the plaintiff and the third party. It is equally clear that the question as to whether or not there was a contract turns on the conclusions to be drawn from a series of letters considered together with the oral agreement, if any. Surely this situation will not support a determination that there is no genuine issues as to any material fact. Hawkins v. Frickreid Supply Corp., 5 Cir., 154 F.2d 88; see also Long v. Morris, 3 Cir., 128 F.2d 653, 141 A.L.R. 1041; Frank Hemingway, Inc. v. Southport Mills, 5 Cir., 279 F.237.
The defendant further alleges by way of affirmative defense that the machines were in the possession of the third party at the time that this action was commenced. Proof of this allegation may not only defeat the plaintiff's claim for relief but also oust the Court of jurisdiction. Massachusetts & S. construction Co. v. Cane Creek, 155 U.S. 283, 285, 15 S. Ct. 91, 92, 39 L. Ed. 152. 'Where the object of an action or suit is to recover the possession of real or personal property, the one in possession is a necessary and indispensable * * * party.' Ibid.
The statement made by Judge Frank in the case of Colby v. Klune, supra, seems applicable here. It was therein stated, 178 F.2d at pages 872 and 873: 'We have in this case one more regrettable instance of an effort to save time by an improper reversion to 'trial by affidavit,' improper because there is involved an issue of fact, turning on credibility. Trial on oral testimony, with the opportunity to examine and cross-examine witnesses in open court, has often been acclaimed as one of the persistent, distinctive, and most valuable features of the common-law system. For only in such a trial can the trier of the facts (trial judge or jury) observe the witnesses' demeanor; and that demeanor- or deposition- is recognized as an important clue to witness' credibility. When, then, as here, the ascertainment (as near as may be) of the facts of a case turns on credibility, a triable issue of fact exists, and the granting of a summary judgment is error.'
It is our observation that the very purpose of Rule 56 is defeated where, as here, the motion for summary judgment rests solely on a voluminous record which contains the testimony and the other evidence which will be offered by the parties on the trial of the action. This procedure casts upon the court the burden of examining the evidence in advance of trial when the court is without authority to determine its credibility, weight or sufficiency. It is obvious that summary judgment entered under these circumstances can only result in reversal, as the many reported cases indicate. The time of the trial court, and frequently that of the appellate court, is not conserved but wasted. This is clearly not conducive to the efficient administration of justice.
It is our opinion that Rule 56 should be invoked only when the complete absence of a genuine issue of fact is apparent upon the face of the record. Resort to the remedy where there is any doubt is futile because it is now well settled that all doubts on this preliminary issue must be resolved against the moving party. The rule can be made to fulfill its purpose if it is invoked only in appropriate cases, and these are not too numerous.
The motion for summary judgment is denied.
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