Doornbos v. Nordman

• Decision Date: 26 August 1970
• Docket Number: Docket No. 8674,No. 3,3
• Citation: 182 N.W.2d 362,26 Mich.App. 278
• Parties: Henrietta Kramer DOORNBOS et al., Plaintiffs-Appellees, v. Amos NORDMAN and Elsie Nordman, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 362

182 N.W.2d 362

26 Mich.App. 278

Henrietta Kramer DOORNBOS et al., Plaintiffs-Appellees, v. Amos NORDMAN and Elsie Nordman, Defendants-Appellants.

Docket No. 8674.

Court of Appeals of Michigan, Division No. 3.

Aug. 26, 1970.

Rehearing Denied Oct. 1, 1970.

Released for Publication Jan. 5, 1971.

Thomas J. Whinery, Grand Rapids, for defendants-appellants.

Varnum, Riddering, Wierengo & Christenson, Grand Rapids, for plaintiffs-appellees.

Before T. M. BURNS, P.J., and FITZGERALD and BYRNS, ^* JJ.

BYRNS, Judge.

Plaintiffs-appellees, as sellers, filed a complaint for specific performance of a land contract against defendants-appellants, as buyers, on April 28, 1969. The contract called for $3,870.00 payable $40.00 down and $40.00 or more a month with interest computed at 6% Per month. The defendants occupied the premises for eight years prior to this action.

Defendants-appellants admitted in their unsworn answer to the complaint that they defaulted under the contract and, in an unspecific manner, alleged that they had no knowledge of whether plaintiffs owned the property in fee simple on the date the contract was executed; alleged a lack of knowledge concerning plaintiffs' ability and willingness to perform the contract; and, finally, alleged, as an affirmative defense, that the contract had been rescinded by an abandonment of the contract. This affirmative defense was, itself, abandoned by the defendants and, therefore, does not have to be considered or reviewed in this appeal.

Plaintiffs filed a motion for summary judgment on the grounds that the defendants' answer stated no valid defense to the claim and that there was no material issue of fact in the case. A title insurance commitment issued by the Transamerica Title Insurance Company for the subject premises in the amount of the contract price was submitted along with plaintiffs' motion, not as what the plaintiffs would on payment of the land contract balance deliver as proof of transfer of good title to the defendants (this would have to be done in the manner required by the land contract), but as proof of the plaintiffs' marketable title to the fee simple on the day that the land contract was executed and at the time of the motion.

GCR 1963, 117.3, speaks of affidavits as well as 'other proof' (not further defined) which can be used to support a motion for summary judgment.

In Durant v. Stahlin (1965), 375 Mich. 628, 640, 135 N.W.2d 392, 395, we find:

'Once a party is challenged as to the existence of the facts upon which he purports to build his case, the sum and substance of the summary judgment proceedings is that general allegations and notice pleading are not enough. Matters upon information and belief and alleged common knowledge are not enough. That party must come forward with at least some evidentiary proof, some statement of specific fact upon which to base his case. If he fails, the motion for summary judgment is properly granted. In the language of GCR 1963, 117.3,

'Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or the other proof show that there is no genuine issue of fact." (emphasis supplied.)

See also, Dionne v. Pierson Contracting Co. (1965), 2 Mich.App. 134, 138 N.W.2d 555; Green v. Lundquist Agency, Inc. (1966), 2 Mich.App. 488, 140 N.W.2d 575; Beck v. Delta Recreation Corp. (1966), 2 Mich.App. 518, 140 N.W.2d 764.

When proofs of a fact in issue are presented for summary judgment, the opposite party cannot rely solely on a general unsworn denial in a pleading or an answer which neither admits or denies. Such opposite party must either offer contrary proofs or affidavits of its own, or contest the adequacy of the moving party's proofs or affidavits...