The opinion of the court was delivered by: John E. Miller, Chief Judge.
As originally filed on December 12, 1957, this case was one by
International Aircraft Maintenance Co., a California corporation,
and Air Leases, Inc., a Nevada corporation, against Orion Air
Transport, Inc., an Arkansas corporation, the First National Bank
of Fort Smith, Arkansas, and a number of individuals, citizens
and residents of Arkansas, including the present defendant,
William A. Baker.
The International Aircraft Maintenance Co. alleged that Orion
Air Transport, Inc., was indebted to it in the sum of $2,339.96
for maintenance and repairs on a certain airplane.
Air Leases, Inc., alleged that Orion Air Transport, Inc., was
indebted to it in the sum of $13,532.09, under a lease agreement
executed on the 31st day of October, 1953.
There were no allegations in the complaint of a claim against
the present defendant, William A. Baker, and the other
individuals, and apparently the present defendant, William A.
Baker, was made a party defendant in an effort to fix the
liability against the First National Bank of Fort Smith. No
allegations or claims against the other individual defendants
appear in the complaint other than the allegation that they were
stockholders and officers of Orion Air Transport, Inc.
On December 24, 1957, the First National Bank of Fort Smith
filed its separate answer, and on the same date the individual
defendants, including the present defendant, William A. Baker,
filed a motion to dismiss the complaint for failure to state a
claim upon which relief could be granted. While the motion to
dismiss filed by the individual defendants was pending, discovery
depositions were taken by plaintiffs but not filed herein.
On May 7, 1958, upon application of Air Leases, Inc., the court
granted leave to it to file an amended complaint, which was filed
the same day. Also, on the date the amended complaint was filed,
an order was entered dismissing the original complaint of
International Aircraft Maintenance Co. for lack of jurisdiction.
By the same order the original complaint of Air Leases, Inc.,
against Orion Air Transport, Inc., the First National Bank of
Fort Smith, and the other individual defendants, except William
A. Baker, was dismissed. Thus, after May 7, 1958, the only claim
that was pending was the amended complaint of the present
plaintiff, Air Leases, Inc., against the defendant, William A.
On May 24, 1958, the defendant, William A. Baker, filed his
answer to the amended complaint, and on September 11, 1958, the
said defendant, pursuant to Rule 56, Fed.Rules Civ.Proc., 28
U.S.C.A. filed his motion for summary judgment on the ground that
there was no genuine issue as to any material fact, and that he
was entitled to a judgment in his favor as a matter of law. The
motion was based upon (a) the pleadings, exhibits, and other
records in the case; (b) the affidavit of William A. Baker,
together with its exhibit; and (c) defendant's brief in support
of the motion. The brief in support of the motion for summary
judgment was served upon the attorneys for the plaintiff, Air
Leases, Inc., on September 10, 1958. Under Local Rule 8 the
attorneys for plaintiff had ten days in which to file their
answer brief, but on September 18 they requested and were allowed
fifteen days additional time in which to file brief in opposition
to the motion for summary judgment.
The plaintiff did not file any brief in opposition to the
motion for summary judgment, but, in an effort to avoid the
impact of the motion, on October 6, 1958, filed the motion for
leave to file a second amended complaint, and as grounds therefor
"That in his answer to plaintiff's amended
complaint [filed May 7, 1958] herein the defendant
for the first time presented a new defense to
plaintiff's cause of action, in that, plaintiff
pleaded the Arkansas Statute of Limitations in bar of
plaintiff's action. That in order to meet this new
issue presented to the court by the defendant,
plaintiff finds it necessary to file its amended
complaint which is herewith tendered to the court."
Thus, there are before the court the motion of defendant,
William A. Baker, for summary judgment on the record as it
existed on September 11, 1958, and the motion of plaintiff for
leave to file the second amended complaint.
Prior to the filing of the motion for summary judgment there
remained in the record only the amended complaint filed on May 7,
1958, and the answer of the defendant. The amended complaint
alleged that the plaintiff was, at all times material, engaged in
the business of leasing airplanes as lessor to lessees who
operated the same for hire, and that the defendant was the
president and a director of Orion Air Transport, Inc., an
Arkansas corporation; that on October 31, 1953, the plaintiff and
Orion Air Transport, Inc., entered into a lease contract in which
plaintiff leased to Orion Air Transport, Inc., a certain airplane
for the monthly rental of $5,000; that Orion Air Transport, Inc.,
had failed to pay all of the rental and that Orion Air Transport,
Inc., was indebted to plaintiff in the sum of $13,532.09.
That on October 19, 1953, prior to the execution of the lease
by plaintiff and Orion Air Transport, Inc., the defendant wrote
a letter to plaintiff, in which he advised plaintiff that he had
in his possession the sum of $14,600 in cash belonging to said
corporation, and that these funds would be held by said
corporation for the purpose of paying the first and last month's
rental on said airplane, totaling $10,000; that said letter
constituted the sole and only information plaintiff had as to the
financial responsibility of the lessee corporation, and plaintiff
relied upon the assurances, representations and promises of the
defendant in entering into said lease contract, and would not
have entered into the same but for the assurances,
representations and promises made to it in said letter by the
defendant. The plaintiff attached to the complaint a copy of the
letter which, omitting the formal parts, is as follows:
"This will confirm our telephone conversation
regarding lease of an airplane from your company to
Orion Air Transport, Inc.
"Orion Air Transport is newly incorporated, and has
not yet elected its officers, which will be done
tomorrow so that by the time we receive a copy of the
lease there will be officers qualified to execute it.
Meanwhile, this is to assure you that $30,000.00
stock has been subscribed, and that I hold at the
present time $14,600.00 in cash deposited with this
bank which will be transferred to the Corporation at
its organization meeting tomorrow, and that these
funds are for the purpose of paying the first and
last months' rental totaling $10,000.00 on the
proposed aircraft lease, subject of course, to