Warren Webster & Co. v. Pelavin

• Decision Date: 01 December 1927
• Docket Number: No. 143.,143.
• Citation: Warren Webster & Co. v. Pelavin, 241 Mich. 19, 216 N.W. 430 (Mich. 1927)
• Court: Michigan Supreme Court
• Parties: WARREN WEBSTER & CO. v. PELAVIN et al.

241 Mich. 19

216 N.W. 430

WARREN WEBSTER & CO.

v.PELAVIN et al.

No. 143.

Supreme Court of Michigan.

Dec. 1, 1927.

Error to Circuit Court, Wayne County; Joseph E. Moynihan, Judge.

Action by Warren Webster & Co. against Harry J. Pelavin and others. Plaintiff had summary judgment, and the named defendant and another bring error. Affirmed.

Argued before the Entire Bench.Friedman, Meyers & Keys, of Detroit, for appellants.

Campbell, Dewey, Stanton & Bushnell, of Detroit (Arthur F. Neef, of Detroit, of counsel), for appellee.

McDONALD, J.

This suit is based on three promissory notes of $650, each executed by the defendants Harry J. Pelavin and Esther Pelavin, and payable to the plaintiff. The notes were given in payment of a heating equipment which the plaintiff sold to defendant Greenberg for use in a building which he was erecting for Mr. and Mrs. Pelavin. They executed the notes, and he guaranteed their payment. Defendant Greenberg was not served with process, and the suit was discontinued as to him.

The plea was the general issue with notice that the defendant Esther Pelavin would claim as special defenses lack of consideration and coverture.

Suit was begun on March 31, 1925. On October 30, 1925, the plaintiff moved for a summary judgment under the provisions of sections 12581, 12582, C. L. 1915. The defendants filed an affidavit of merits signed by Harry J. Pelavin. The court ruled that the affidavit was not sufficient to meet the requirements of circuit court rule No. 34 as amended, and entered a judgment for the plaintiff. The defendants have brought error.

The only question involved is whether the affidavit of merits sufficiently complies with circuit court rule 34, as amended.

Before the amendment to rule 34, it was not required that the affidavit should recite facts from which the court could determine if the defendant had a meritorious defense to the action. It was sufficient if it recited that he had fully and fairly stated the facts to his counsel, and was advised that he had such a defense. It was intended by the amendment that the facts should be stated with such particularity that the court could determine if there was a good and substantial defense. The applicable portion of the amendment reads as follows:

‘The facts so stated shall be the personal knowledge of the affiant, shall be set forth in the affidavit with particularity, and the affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.’

That part of the affidavit in which affiant undertakes to state the facts upon which the defense is based is as follows:

‘Deponent further says that said defense consists in plaintiff's failure to fully execute and perform an agreement made by it simultaneously with the execution of the notes upon which suit was brought; that the said Esther Pelavin has good and sufficient defenses against said action, the said defense consisting of the following:

‘(a) No consideration passed to the defendant, Esther Pelavin, in return for her execution of the notes set forth in the plaintiff's declaration.

‘(b) That said notes are void as against the defendant, Esther Pelavin.

‘(c) That the defendant Esther Pelavin is a married woman, and was a married woman at the time of the giving of said notes, and that the said notes were not given in connection with her sole and separate estate, and she was not therefore bound to pay.’

Examining the recitals of this affidavit in the order stated, it will be observed that the first statement is a mere conclusion that the plaintiff did not fully perform an agreement made simultaneously with the execution of the...