concurring and dissenting.
I concur with the majority holding as to the guaranties. I respectfully dissent as to the note secured by the mineral rights which were sold.
NDRCivP 56(c) on summary judgment directs that “judgment shall be rendered forthwith if the pleadings, ... together with the affidavits, ... show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter' of law.” (My emphasis). The majority opinion concludes that the facts, about liquidating the mineral rights which were set out in Ruvold’s affidavit, did not present a triable issue of fact because those facts were not manifested by any defense stated in the answer. This holding demands that affidavits resisting summary disposition correspond vigorously to the pleadings. I cannot support such a harsh and mechanical application of the summary judgment rule.
Jacobsens plead “waiver” in their answer, claimed “waiver” in their brief to the trial court, and, by Ruvold’s affidavit, supported “waiver” with facts that would arguably “clear out [their] personal obligation to the bank.” Imprecise as it was, this effort seems to- me enough to have raised a triable issue of fact about the effect of the liquidation of the mortgaged mineral rights on Jacobsen’s liability. We cannot fairly require exact characterizations of theories in the pleadings, such as “barred by the anti-deficiency statutes,” “accord and satisfaction,” or “estoppel” (kin to “waiver”). To do so would bring back the concept of precise code pleading which our present rules sought to replace. See NDRCivP 8 and its Explanatory Note. In my view, Ruvold’s affidavit stated facts which raised a triable issue about “waiver” of the Jacobsens’ liability on the note secured by the mineral rights.
Even assuming that Jacobsen’s answer did not sufficiently characterize the defense supported by Ruvold’s factual affidavit, I am still troubled by the majority decision. NDRCivP 15 promotes a liberal policy of amending pleadings: “[L]eave shall be freely given when justice so requires.” The policy of Rule 56 to quickly dispose of futile litigation must be accommodated with the Rule 15 objective of deciding a dispute on its merits.
Where a readily identifiable legal theory has been reflected in facts set out in an affidavit, I would expect a trial court to recognize it, to deem the pleading amended accordingly and to set the factual issues for trial. A trial court should not be required to ferret out obscure issues, as in Biby, post. However, issues obviously raised in affidavits should be recognized, as is done during trial, without the formality of a motion to amend or with direction to amend. See NDRCivP 15(b).
Thus, I do not believe that our decision in Northwestern Federal Savings & Loan Ass’n of Fargo v. Biby, 418 N.W.2d 786 (N.D.1988) should be applied to this case. To do so in this case is at odds with our usual objective of disposition on the merits and with the spirit of our civil rules “to secure the just, speedy, and inexpensive determination of every action.” NDRCivP 1. I am not alone in this view. Drawing on decisions under the Federal Rules of Civil Procedure from which our Rule 56 comes, 6 Moore’s Federal Practice, ¶ 56.11[3] says:
“Affidavits going beyond the pleadings may be considered if facts appear in the affidavits which would justify an amendment. (( * * *
*290“Although there is authority that defenses not pleaded in defendant’s answer may not be raised by affidavits on his motion for summary judgment, this is highly technical and illiberal. Either the answer should be deemed amended to conform to the proof offered by the affidavits or a formal amendment permitted, the affidavits considered, and the motion for summary judgment decided under the usual rule pertaining to the adjudication of summary judgment motions.” (Footnotes omitted).
For these reasons, I respectfully dissent as to that part of the summary judgment on the note secured by the mineral rights.