NAN WHISTON, Formerly Known as NAN ANDER, Appellant, v. ROBERT L. McDONALD, JOHN H. UHALDE, RAYMOND PLUNKETT, HAROLD B. TILLER, and LEONARD E. BOWSER, the Duly Elected, Qualified and Acting Trustees of the INCLINE VILLAGE GENERAL IMPROVEMENT DISTRICT; and CRYSTAL BAY DEVELOPMENT CO., a Nevada Corporation, Respondents
Whiston v. McDonald
Batjer and Thompson, JJ., concur.
NAN WHISTON, Formerly Known as NAN ANDER, Appellant, v. ROBERT L. McDONALD, JOHN H. UHALDE, RAYMOND PLUNKETT, HAROLD B. TILLER, and LEONARD E. BOWSER, the Duly Elected, Qualified and Acting Trustees of the INCLINE VILLAGE GENERAL IMPROVEMENT DISTRICT; and CRYSTAL BAY DEVELOPMENT CO., a Nevada Corporation, Respondents.
NAN WHISTON, Formerly Known as NAN ANDER, Appellant, v. ROBERT L. McDONALD, JOHN H. UHALDE, RAYMOND PLUNKETT, HAROLD B. TILLER, and LEONARD E. BOWSER, the Duly Elected, Qualified and Acting Trustees of the INCLINE VILLAGE GENERAL IMPROVEMENT DISTRICT; and CRYSTAL BAY DEVELOPMENT CO., a Nevada Corporation, Respondents.
No. 5708
August 28, 1969
458 P.2d 107
[Rehearing denied October 2, 1969]
Nada Novakovich, of Reno, for Appellant.
Bible, McDonald, Carano & Wilson, of Reno, for Respondents.
OPINION
By the Court,
Zenoff, J.:
Nan Whiston and Albert Ander became husband and wife and resided in the Incline Village area, a new development at Lake Tahoe. With Albert apparently experienced or knowledgable of the garbage disposal business an exchange of conversations and letters took place with Arthur Wood, principal developer of the Incline project, with regard to the garbage disposal business at Incline. Nan apparently had sufficient funds to make certain financial commitments for the purchase of equipment. We do not know that she participated in any of the negotiations; there is an inference that she did not. Several entities appear in the exchange of correspondence, such as the Incline Village General Improvement District, Crystal Bay Development Company, Crystal Bay Disposal Company and Crystal Bay Disposal Co., Inc. Through it all, however, Arthur Wood or his attorney, Robert McDonald, did all of the negotiating for or through any or all of the entities. For the purposes of this present problem, the machinery of the negotiations may be disregarded except as hereinafter specified. It is necessary only to note that the transactions were between Arthur Wood and Albert Ander.
Nan brought suit against all of the pertinent entities except the Crystal Bay Disposal Co., Inc. She claims damages for breach of contract. Allegedly because of a letter of January 29, 1964 from McDonald, she and Albert went into performance. Apparently they could not get a business license, so Wood formed the Crystal Bay Disposal Co., Inc., the business license was obtained in its name, and by agreement of May 15th the corporation hired Albert under certain terms on a minimum plus percentage salary. Nan is not mentioned but in her deposition she admitted she knew of that agreement. The disposal business was operated by Nan and Albert as Crystal Bay Disposal Company. Nan and Albert had their marriage annulled and he assigned all of his rights under the May 15th agreement to her without notice to or knowledge of the corporation.
A few months later he quit. Upon A1 leaving the business the corporation through Wood terminated the deal and Nan claimed breach of contract.
The defendants moved to dismiss and moved also for summary judgment. For our present purposes it is not necessary to review the disposition of the motion to dismiss by the trial court because our affirmance of the granting of the summary judgment will dispose of the entire matter.
Appellant urges that the May 15th agreement between Albert and Crystal Bay Disposal Co., Inc., was assigned to her and that she could therefore require performance by the respondents. We find in this record unrefuted that the May 15th agreement superseded all prior agreements. It specifically so provided and Nan testified in her deposition that it was to supersede everything that went before it. Furthermore, by her conduct, Nan ratified the agreement of May 15th which was executed by A1 Anders. For more than a year, without protest, she performed under that agreement, she allowed her equipment to be used and she accepted checks from one or more of Art Wood's corporations in the exact amount provided for in the May 15th agreement. In her own words she said: ". . . I immediately shot them down to my bank as deposits." In her memorandum executed in writing on July 9, 1965 Nan acknowledged and ratified the May 15th agreement. Fanning v. C. I. T. Corp., 192 So. 41 (Miss. 1939).
The May 15th agreement therefore became the contract between the parties and the January 29th agreement expired. By its terms the corporation hired Anders and the equipment as an employee and he was to pay the cost of operation from the monthly sums paid to him by the employer corporation. Principally the new contract was negotiated because the business was not profitable to the Anders, largely because of their difficulty in collecting from the customers. Neither were they able to get a business license. In order to assure the area of having a garbage pickup Wood formed the disposal corporation and hired Anders in the May 15th agreement.
It was after that transaction was effected that Nan and Albert had domestic difficulties which ended in an annulment. In their property settlement he assigned his interest in the equipment to her and claimed no interest in the business. After the annulment he quit. When the employer corporation learned that he had left they sought a disposal service elsewhere. It should be emphasized that the May 15th agreement contained no definite term or time period. Neither Nan nor A1 had any tenure.
The main theme of the plaintiffs complaint is that the defendants breached the letter agreement of January 29, 1964. No reference is made by the complaint to the May 15, 1964 agreement. There is nothing offered by the plaintiff to support her position that the May 15th agreement merely modified the January 29th agreement. A comparison of the two agreements establishes that the latter agreement cannot be a modification of the former for reasons that are obvious in their differences.
All of the foregoing appears from the record supporting this summary judgment. Nowhere does appellant refute or controvert by affidavit, deposition or interrogatories. The adverse party may not rest upon the allegations in her pleading but must by affidavit or other evidentiary matter set forth specific facts showing a genuine issue for trial. Berryman v. International Bhd. Elec. Workers, 85 Nev. 13, 449 P.2d 250 (1969); Adamson v. Bowker, 85 Nev. 115, 450 P.2d 796 (1969); Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676 (1962).
Summary judgment is affirmed.
Batjer and Thompson, JJ., concur.