This is an action brought by Storz Brewing Company, a corporation, hereinafter referred to as plaintiff, against R. N. Kuester, hereinafter referred to as defendant, on an unconditional guaranty of payment of any credit ex *136 tended Ware R. Christenson for the purchase of merchandise. The trial court sustained plaintiff’s motion for summary judgment, and defendant has perfected an appeal to this- court.
The action was filed in the district court for Hall County on April 29, 1963. On September 24 defendant filed an answer in the form of a general denial and a request that the plaintiff be put on strict proof. On September 27 plaintiff filed requests for admissions. Defendant filed his responses and objections to plaintiff’s request for admissions on October 8. As to the plaintiff’s request for admissions .of the correctness of the debits and credits shown on the account, defendant gave reasons why he could not deny or affirm their correctness. The objections were heard on October 11.. The request for admissions, as to the correctness of the debits and credits shown on the account were waived. The objections' to the rest were overruled, and the defendant was given until October 21 to respond. No response was ever made. On November 4 plaintiff filed its motion for summary judgment, supported by the affidavit of its credit manager. This motion was noticed for hearing on November 15 at 1:30 p.m. On that day, defendant, without leave of court, filed an amended answer out of time. At the time set, hearing was- had on the motion for summary judgment. The bill of exceptions does not indicate any action of any nature on the amended answer. The defendant filed no affidavit and produced no evidence. The journal entry indicates that the amended answer was not considered by the court in the hearing on the summary judgment.
The defendant alleges six -assignments- of error. The only assignments we will consider pertain to the admission of evidence at the hearing and that the summary judgment entered is not sustained by sufficient evidence.
. Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable d’o-ubt touching the existence of
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a genuine issue of material fact must be resolved against the moving party. See Illian v. McManaman,
The defendant assigns as error the overruling of his objection to admission of exhibits Nos. 1 through 16. Exhibits Nos. 1 through 15 are the purported ledger sheets showing the plaintiff’s account with Ware R. Christenson, doing business as Grand Island Beer Company. Exhibit No. 16 is the affidavit of plaintiff’s credit manager, which attempts to prove compliance with the requirements of section 25-12,109, R. R. S. 1943, to have exhibits Nos. 1 through 15 admitted as plaintiff’s business records. The affidavit is sworn to before the attorney of record for the plaintiff, who was the attorney offering it at the hearing on the motion. Defendant objected to its introduction because of incompetency, no proper and sufficient foundation, and several other reasons not material herein.
It was the rule of common law that an affidavit taken before an attorney in a case could not be used in evidence if objected to. Collins v. Stewart,
In Horkey v. Kendall,
In Maroosis v. Catalano,
The affidavit, exhibit No. 16, was not a pleading, but was offered as evidence. It is the only evidence offered by plaintiff in an attempt to secure the admission of exhibits Nos. 1 through 15. It was not admissible over objection.
Plaintiff attempts to use the defendant’s statements as to* why he could neither affirm nor deny the correctness of the debit and credit entries* shown on the plaintiff’s account with Ware R. Christenson to prove that the defendant had no defense thereto. Defendant, who was a guarantor, insisted he had no* means of ascertaining the truth or falsity of the entries; that the business had been closed; and that the principal debtor, Ware R. Christenson, was out of the jurisdiction of the court and his whereabouts* was* unknown to the defendant.
In Smith v. Allen,
Plaintiff argues that discovery proceedings were available to the defendant. Under the particular facts presented in this, case, we feel that what Judge Delehant said in Chenault v. Nebraska Farm Products, Inc.,
A decision in this case must be approached in the light of the admonition inherent in our cases that great care should be exercised in granting motions, for summary judgment, and any doubt must be resolved against the granting of the motion. The defendant herein is a guarantor. We have a situation where the necessary facts are within the exclusive knowledge of the moving party. In some situations this has been held sufficient to warrant the denial of a motion for summary judgment. See 3 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.), § 1232.2, p. 111. While this is not the exact situation referred to in that text, a guarantor may be in a peculiar situation to warrant the same consideration.
There is an even more cogent reason why the order in this case must be reversed. Assuming the admissibility of the affidavit and the business records, we are still met with the rule that contracts of guaranty are strictly construed. Without further evidence, the guaranty under that rule must be construed as being limited to the guaranty of payment of credit extended for the purchase of merchandise. The affidavit of the credit *140 manager certifies the record pertains to all of the transactions between the plaintiff and Ware R. Christenson, but does not limit the debit entries on the ledger sheets solely to the purchase of merchandise. The limited information furnished by the entries would indicate that some of them are for truck repairs and painting, advertising, road signs, and the like. It is. possible further evidence will explain these items but, on the record, sufficient doubt is created to require the denial of the motion for summary judgment.
For the reasons given above, the order sustaining the motion for summary judgment should be and hereby is reversed and the cause is remanded for further proceedings.
Reversed and remanded.