913 NORTH MARKET STREET PARTNERSHIP, L.P., a Delaware Limited Partnership, and HELMUT NANZ, Plaintiffs Below, Appellants, v. EDWARD W. DAVIS, Defendant Below, Appellee.

No. 274, 1998.Supreme Court of Delaware.
Decided: December 23, 1998.

Superior CA 96C-12-132.

Reversed and remanded.

Unpublished Opinion is below.

913 NORTH MARKET STREET PARTNERSHIP, L.P., a Delaware Limited Partnership, and HELMUT NANZ, Plaintiffs Below, Appellants, v. EDWARD W. DAVIS, Defendant Below, Appellee. No. 274, 1998. In the Supreme Court of the State of Delaware. Submitted: December 1, 1998. Decided: December 23, 1998.

Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.

ORDER
This 23rd day of December, 1998 upon consideration of the briefs of the parties and oral argument it appears as follows:

(1) This is an appeal from the grant of summary judgment in the Superior Court. The appellants, 913 North Market Street Partnership, L.P., a Delaware limited partnership and Helmut Nanz (collectively “913”) had commenced a debt action in the Superior Court seeking collection of a note in the amount of $111,000 executed by the appellee, Edward W. Davis (“Davis”) in favor of Nanz and later assigned to 913. The Superior Court concluded that the note, dated October 18, 1989, was by its terms a promissory note payable at a definite time, April 30, 1990. Since the collection action in the Superior Court was commenced on December 16, 1996, the claim was ruled by the six year statute of limitations required by 6 Del. C. § 3-118(a).

(2) In this appeal, 913 argues that there was a material dispute of fact which precluded the grant of summary judgment. Specifically, it contends that the note in question was the subject of a March 28, 1991 agreement of the parties to the effect that the note in dispute would be offset by a note given by the partnership to Davis. Under this “note for note” arrangement, it is argued, the time for payment as to either obligation would run from March 28, 1991, payable on March 27, 1996, with a six year period of enforcement to follow. Davis has apparently enforced the note in his favor which was secured by a mortgage. See Davis v. 913 North Market Street Partnership, Del. Super., C.A. No. 96L-06-013, 1996 WL 769326 (Dec. 12, 1996), aff’d., Del. Supr., No. 116, 1997, 1997 WL 597113 (Sept. 19, 1997).

(3) Davis argues that since the note contains no language calling for an extension, none may be inferred. Accordingly, he contends that the Supreme Court correctly ruled, as a matter of law, that the six year period for enforcement of the note ran from the due date on the instrument, April 30, 1990.

(4) Our standard of review in an appeal from the grant of summary judgment is de novo. Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 (1992). Thus we apply the usual standards for the granting of summary judgment: (1) the moving party bears the burden of demonstrating both the absence of a material issue of fact and entitlement to judgment as a matter of law, Mason v. United Services Automobile Assoc., Del. Supr., 697 A.2d 388, 392 (1997); and (2) any doubt concerning the existence of a factual dispute must be resolved in favor of the non-movant Crothall-American, 606 A.2d at 99. For purposes of testing Davis’ entitlement to summary judgment, therefore, we are required to accept 913’s contention, supported at least inferentially by the deposition testimony of Nocolai Siddig, that it was his understanding that the parties had agreed, at their March 28, 1991 meeting, that respective obligations would be offsetting both in amount and terms of enforceability.

(5) The Superior Court refused to view Siddig’s testimony as altering the written terms of the note that expressed the time for payment. The terms of a written contract, however, may be modified by subsequent oral agreement of the parties to forbear their rights under the agreement. Reeder v. Sanford School, Inc., Del. Super., 397 A.2d 139, 141 (1979). The party asserting such modification bears the burden of proving the intended change with “specificity and directness,” but the circumstances of the parties dealings may suffice. Id. In any event, for purposes of summary judgment, the non-movant’s entitlement to that inference must be recognized. We perceive of no policy reason which would preclude application of forbearance or promissory estoppel if the facts of a particular case so demonstrate.

(6) We express no view on the sufficiency of Siddig’s belief, we merely note that for summary judgment purposes it is entitled to credit. Whether the claim is supportable before a trier of fact is not a pertinent consideration at this juncture.

(7) We conclude that the Superior Court’s grant of summary judgment in this case was not warranted in view of unresolved issues of material fact. Accordingly, we reverse.

(8) The parties to this case have engaged in extensive litigation disputing events arising out of their previous business relationship. It is not amiss to remind them that resort to the court system is not the only method for resolving their differences. As this Court noted on an earlier occasion: “[i]n light of all the contentious litigation to date, we trust it is not vain to hope that the parties will find a non-judicial basis for resolving their differences.” State, ex rel. Scattered Corp. v. Chicago Stock Exchange, Del. Supr., No. 444, 1995, 1996 WL 191023 at **4 (Apr. 4, 1996) (ORDER).

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is REVERSED, and the matter REMANDED for further proceedings consistent with this decision.

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