Gulbenkian v. PennGulbenkian v. Penn
delivered the opinion of the Court.
This cause reaches this court from a judgment of the Court of Civil Appeals reversing a judgment of a district court of Dallas County, Texas, granting a summary judgment to petitioners.
Petitioners were the heirs of the said Kerope Gulbenkian, who had died during the interval between the execution of the license agreement and the time of filing of the suit. Respondent answered pleading a general denial, and, among other defenses to the suit, plead a failure of consideration by virtue of fraud and deceit practiced upon respondent by Kerope Gulbenkian at the time of the signing of the licensing agreement. This defense was duly verified. In addition, respondent plead invalidity of the license agreement by virtue of the Sherman Anti-Trust Act, and the Anti-Trust Act of the State of Texas; also that the patent in question expired in December 1948, and therefore no further royalties could legally be collected after such expiration date. For cross action the respondent plead his cause of action for fraud and misrepresentation and asked for return of all moneys previously paid to petitioners, and offered to surrender to petitioners the license agreement.
Petitioners filed a supplemental petition lodging certain exceptions to respondent’s answer, among which exceptions and defensive pleading were estoppel, laches and the statute of limitations. Request for admission was filed by petitioners and answered by respondent. Thereafter, petitioners filed a motion for summary judgment against the respondent upon the grounds (1) that the pleadings of the parties, the admissions of respondent and the licensing agreement, together with the attached affidavit of plaintiff Hrepsime Gulbenkian “prove all the facts necessary to entitle plaintiffs (petitioners) to recovery (2)
a.
not involved in this appeal;
b.
that respondent’s plea of failure of consideration is an attack on the validity of the patent, the subject matter of the license agreement, and respondent is estopped to attack the validity thereof, having used and paid royalties under the exclusive license agreement for almost eight years;
c.
that respondent is estopped to rescind the license
“And in addition to the consideration hereinabove referred to, the Licensee further agrees to pay to the Licensor until August 4, 1953, a royalty of fifteen cents (15^) a pound for each and every pound of bleaching product manufactured and sold by him or his sub-licensees under United States Patent No. 1,836,- 134 during the term of this license agreement; and the Licensee further agrees to pay to the Licensor a minimum royalty of Two Hundred and Fifty Dollars ($250.00) per month during the term of this license agreement. The payments hereinabove provided shall be paid monthly.”
Rule 166-A, Rules of Civil Procedure, provides for summary judgment “(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there isi 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).
1, 2 We adopted this rule from Federal Rule 56, and that rule has been construed as allowing summary judgments only when there is no disputed fact issue. The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. King v. Rubinsky,
3 “In determining a motion thus depending upon extrinsic evidence, the court’s task is analogous to that which he performs on a motion for directed verdict. He accepts as true all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.” McDonald, Texas Civil Practice, Vol. 4, Sec. 17.26, p. 1394, and authorities
4 The general rule is that if a motion involves the credibility of affiants or deponents, or the weight of the showings or, it is said, a mere ground of inference, the motion will not be granted. Sartor v. Arkansas Nat. Gas Corp.,
5 The crux of petitioners’ motion for summary judgment is that respondent had a legal duty to produce the product under the license agreement, and had he discharged this duty he would have discovered the alleged worthlessness of the patent long prior to June 1947; therefore, as a matter of law, respondent is estopped to claim he did not make such discovery prior to June 1947. The cases cited by petitioners as holding there is a legal duty to produce under the patent are Re Waterson, Berlin & Snyder Co. (Cir.) 48 Fed. 2d 704, and American Mech. Imp. Co. v. Des Lauriers Aircraft Co. 94 N.J.Eq. 197,
6 On the question of estoppel we find that “In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the fact; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.” 31 C.J.S. Etoppel, Sec. 67, p. 254. Also, “Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel.” Idem. Sec. 77, p. 282, et seq.
We do not believe all the essential elements of estoppel are established by the record as presented to the court on the motion for summary judgment, and that a fact question was raised as to the estoppel. Since this cause must be tried on its merits we are expressing no opinion on the facts.
We think the Court of Civil Appeals correctly reversed the trial court’s summary
The judgment of the Court of Civil Appeals is affirmed.
Opinion delivered October 1, 1952.