H. Rouw Co. v. Gaylord Container Division of Crown Zellerbach Corp.

GREEN, Chief Justice.

Appeal is from a summary judgment for appellee, plaintiff below, on a promissory note, which judgment also refused relief to appellant, defendant below, on its cross-action. We reverse and remand.

Appellee does not deny that a genuine issue of fact exists as to failure of consideration for the original indebtedness on open account. The question before us is whether, under the summary judgment “evidence”, it is established as a matter of law that appellant has waived its defense of failure of consideration.

In passing upon the merits of this appeal, we shall be guided by the…