Lowe v. Hulliger

83 A.2d 698 (1951)

LOWE v. HULLIGER.

Civil Action No. 91.

Superior Court of Delaware, Sussex.

October 3, 1951.

W. Howard Thompson, Georgetown, for plaintiff.

Everett F. Warrington, Georgetown, for defendant.

*699 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.

*700 4. That the said lease provided for payment to the plaintiff, 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 plaintiff's motion for summary judgment.

Let an order be submitted to that effect.

[1] Rules 33 (Interrogatories) 36 (Requests for Admissions) and 8(c) (Affirmative Defenses) are either identical or practically identical with the Federal Rules bearing the same numbers.