Schuhardt v. Jensen

• Decision Date: 03 April 1968
• Docket Number: Docket No. 3379,No. 1,1
• Citation: 11 Mich.App. 19,160 N.W.2d 590
• Parties: Arthur L. SCHUHARDT, Plaintiff-Appellant, v. Ernest JENSEN and Erna Jensen, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 590

160 N.W.2d 590

11 Mich.App. 19

Arthur L. SCHUHARDT, Plaintiff-Appellant, v. Ernest JENSEN and Erna Jensen, Defendants-Appellees.

Docket No. 3379.

Court of Appeals of Michigan, Division No. 1.

April 3, 1968.

Released for Publication Sept. 4, 1968.

Russell A. Buyers, Smith, Buyers & Breen, Detroit, for appellant.

John von Batchelder, Cassese & Batchelder, Detroit, for appellees.

Before LESINSKI, C. J., and GILLIS and T. G. KAVANAGH, JJ.

LESINSKI, Chief Judge.

Plaintiff appeals from a summary judgment granted against him on the ground that the cause of action he asserts had previously been used by him as an affirmative defense in an earlier action brought by one of the defendants.

Arthur Schuhardt sues defendants, Ernest and Erna Jensen, for $7,000 he allegedly loaned to them. They moved for summary judgment, stating that in a prior action Ernest Jensen had brought against plaintiff in the common pleas court for rent due, Schuhardt had successfully pleaded as a defense the cause of action he attempts to assert here. The circuit judge, in granting the motion for summary judgment, found that essential to the earlier judgment entered by the common pleas court in favor of Schuhardt was a determination of the issue he would raise here.

We concur that, under the circumstances found here, plaintiff should be estopped. When plaintiff raised his affirmative defense in the prior action, he chose to put in issue between the parties the same cause of action he would assert here. Under the interpretation of Res judicata given for our jurisdiction by the Supreme Court in Ternes Steel Company v. Ladney (1961), 364 Mich. 614, 111 N.W.2d 859, plaintiff is estopped.

Arthur Schuhardt is the brother of Erna Jensen. After the death of his wife, Schuhardt came to live with his sister and her husband until friction generated by his living in the defendants' home caused him to leave. During the time he lived with the defendants, the plaintiff withdrew $7,000 from his bank account and gave that amount to the defendants who used the money to discharge the mortgage on their house. Now plaintiff claims that that $7,000 was a loan. The defendants claim it was gift. The record before us provides no evidence, written or oral, to support the plaintiff's bare assertion that these parties entered into a loan agreement.

But the crucial point here is that the issue has been litigated. Judge Stanczyk of the common pleas court for the city of Detroit, in the prior action brought by the defendant Ernest Jensen, gave judgment for Schuhardt. Essential to the decision to the common pleas court was a finding that any obligation owed by Schuhardt was offset by the interest the Jensens allegedly owed him. This decision necessarily implies the finding that the loan existed. The plaintiff, having asserted his cause of action as an affirmative defense in the earlier suit, is estopped to assert it again here. Leslie v. Mollica (1926), 236 Mich. 610, 211 N.W. 267, 49 A.L.R. 546; Ternes Steel Company v. Ladney, supra. In the prior action, plaintiff would have been entitled to counterclaim up to the $5,000...