Dempsey v. Langton

• Decision Date: 06 March 1934
• Docket Number: No. 16.,16.
• Citation: 253 N.W. 210,266 Mich. 47
• Parties: DEMPSEY v. LANGTON et al.
• Court: Michigan Supreme Court

266 Mich. 47

253 N.W. 210

DEMPSEY

v.LANGTON et al.

No. 16.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Wayne County; Clyde I. Webster, Judge.

Action by Jane Dempsey against Sara T. Langton, individually and doing business as the Therese Company, and another.From an adverse judgment, named defendant appeals.

Reversed and remanded.

Argued before the Entire Bench.

Marlin J. W. Campbell, of Detroit, for appellant.

Devine, Kent & Devine, of Detroit, for appellee.

EDWARD M. SHARPE, Justice.

This is an appeal by the defendant Langton from a summary judgment granted by the honorable Clyde I. Webster, a circuit judge of Wayne county, in favor of the plaintiff for the amount of plaintiff's claim, interest, and costs.

The record in this case shows that the defendant Langton was and is the sole owner of ‘The Therese Co.’; that some time prior to September 25, 1932, she was negotiating with the plaintiff Dempsey either for the loan of $950 or for the purchase by the plaintiff of the defendant's business by making a cash payment of $950, defendant to have the use of the money until February 15, 1933, when said sum would be applied on the purchase price or be returned to plaintiff if plaintiff decided not to buy.

As a result of these negotiations plaintiff paid defendant $600 as evidenced by check dated September 25, 1932, and $350 as evidenced by check dated October 5, 1932.Defendant gave plaintiff her note in the sum of $950 dated September 25, 1932, and payable February 15, 1933.This note was returned by plaintiff to defendant on November 17, 1932.

December 14, 1932, plaintiff brought suit in the court below for money had and received, declaring on the common counts and on the two canceled checks above mentioned.In her declaration plaintiff states that the money is due upon request, while the defendant answers that the money is not due until February 15, 1933.On May 17, 1933, plaintiff filed an affidavit in support of her motion for summary judgment, and on May 27, 1933, defendant filed an affidavit in denial of plaintiff's motion for summary judgment.Judgment was entered May 27, 1933, in favor of plaintiff.

Two questions are involved in this case.First, did the defendant's affidavits of merits filed May 27, 1933, comply with section 3 of rule 30 of the Michigan Court Rules of 1931, the rules then in force?Second, was it proper to grant a summary judgment under the facts in this case, where, under defendant's answer and affidavits of merits, no cause of action existed at the time suit was started, although a cause of action did exist before the summary judgment was granted?

Section 3 of rule 30 of the Michigan Court Rules of 1931 provides that an affidavit of merits ‘shall not consist of conclusions but of such facts as would be admissible in evidence; and shall show affirmatively that the affiant, if sworn as a witness, could testify competently thereto.’

The defendant's affidavit of merits filed May 27, 1933, contains the following:

‘That it was understood and agreed by and between the said plaintiff and this deponent that the said sums of money were to be used in the business of the ‘Therese Company’ until the 15th day of February, 1933, at which time the plaintiff had agreed to pay the balance of the ten thousand ($10,000.00) dollars for the ‘Therese Company’ or have the return of the money she had deposited.* * *

‘Deponent further says that shortly after the plaintiff agreed to purchase the ‘Therese Company’ and after she had deposited the sum of nine hundred fifty ($950.00) dollars with this deponent the plaintiff requested that this deponent give her a promissory note in payment of the sum of nine hundred fifty ($950.00) dollars.That this deponent granted the request of the plaintiff and executed a promissory note in the said sum of nine hundred fifty ($950.00) dollars, a copy of which note is attached hereto and market Defendant's Exhibit A, and delivered the same to the plaintiff.* * *

‘This deponent further says that the plaintiff accepted the promissory note in payment of the said sum of nine hundred fifty ($950.00) dollars and retained it for a period of about four weeks or until about the 17th day of November, 1932, at which time it was returned to this deponent by Alan Devine, attorney for the plaintiff.That this deponent immediately tendered the note back to the plaintiff but she refused to accept it.’

In our opinion these statements above quoted are not conclusions, but are statements made by the defendant of what she expected to prove, and as such under the pleadings in this case were admissible in evidence.We must therefore find that the defendant's affidavit of merits did comply with section 3 of rule 30 of the Michigan Court Rules of 1931.

As to the second question, this court has repeatedly held that it is improper to grant a summary judgment where there is a dispute as to the facts.In other words, a summary judgment in favor of the plaintiff may not be given unless, granting the truth of all the facts alleged in the defendant's affidavit of merits, plaintiff would still be entitled to recover.Tomlinson v. Imperial Hotel Corporation, 245 Mich. 52, 222 N. W. 104;Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich. 273, 230 N. W. 170, 69 A. L. R. 1024;Caswell v. Stearns, 257 Mich. 461, 241 N. W. 165;Cohen v. Peerless Soda Fountain Service Co., 257 Mich. 679, 241 N. W. 810;Cass v. Washington Finance Co., 263 Mich. 440, 248 N. W. 863.As stated by Justice Fead in Baxter v. Szucs, 248 Mich. 672, at page 675, 227 N. W. 666, 667: ‘The province of the court, on motion for summary judgment, is to determine judicially whether there is an issue of fact which, if resolved in favor of defendant, would preclude a verdict for plaintiff in whole or in...