Zamler v. Smith

• Decision Date: 07 June 1965
• Docket Number: J,No. 8,8
• Citation: 135 N.W.2d 349,375 Mich. 675
• Parties: Lawrence ZAMLER and Katie Zamler, his wife, Plaintiffs and Appellees, v. Arthur N. SMITH, Metropolitan Finance Company, a Michigan corporation, and American Adjustment Corporation, a Michigan corporation, jointly and severally, Defendants and Appellants. anuary Term.
• Court: Michigan Supreme Court

Page 349

135 N.W.2d 349

375 Mich. 675

Lawrence ZAMLER and Katie Zamler, his wife, Plaintiffs and Appellees, v. Arthur N. SMITH, Metropolitan Finance Company, a Michigan

corporation, and American Adjustment Corporation,

a Michigan corporation, jointly and

severally, Defendants and Appellants.

No. 8, January Term.

Supreme Court of Michigan.

June 7, 1965.

Gordon S. Smith and Barry A. Kushner, Pontiac, for appellants.

Klar, Klein & Resenberg, Detroit, for appellees.

Before the Entire Bench.

O'HARA, Justice.

This is an appeal from a summary judgment entered by the trial judge in an action at law in which no jury was demanded on a purchase sale agreement. The factual background is as follows: Arthur Smith, as an individual, by written instrument signed both by him and plaintiffs, agreed to purchase and they to sell certain voting common stock of Metropolitan Finance Company. The instrument provided for delivery of an assignment of the voting rights immediately upon execution thereof. It also contained an option permitting plaintiffs to cancel the sale as opposed to the assignment of voting rights within a 10-day period beginning one year from the date of the agreement, at which time full payment was due for the stock. Defendant was president of both corporations. The agreed price was $7,956, for 663 shares at $12 per share. Defendant delivered one check to plaintiffs, drawn on defendant American Adjustment for $4,000. Later he delivered another check so drawn for $3,956. The second check, post-dated, was returned for insufficient funds. Defendant American Adjustment is a subsidiary of defendant Metropolitan. It appears from the record that defendant Smith was attempting to obtain voting control of corporate defendant American. When the second check was returned, plaintiffs began suit against all 3 defendants and garnished their accounts in several Detroit banks. Answers were filed and affirmative defenses pleaded. Plaintiffs moved for summary judgment. The corporate defendants moved to dismiss the original action, as to them, and filed counterclaims against plaintiffs for malicious abuse of process.

The court ordered testimony taken on the motions for summary judgment. The result was an extremely copious testimonial record.

Plaintiff Lawrence Zamler testified he signed, with his wife's consent, both their names to the stock transfer and executed and delivered the assignment of voting rights. Defendant Smith denied both delivery of the assignment and valid execution of the transfer. He also testified to an extremely complex set fof facts that somehow or other constituted him a broker of sorts for the defendants. He denied that the initial check was in partial payment for the stock, and alleged some sort of 'loan' agreement with plaintiff husband. He pleaded nonperformance by plaintiffs and tendered back the stock. The hearing on the motion encompassed almost all the issues which would have been involved in a hearing on the merits.

It is not to the point of decision here that no jury was demanded and that Judge Piggins would have been, under the pleadings, the trier of the facts and the sole judge of the credibility of the witnesses. We think perhaps this fact may have led to the error which compels us to reverse.

At the conclusion of the testimony, the trial judge held as follows: He denied the motions of defendants Metropolitan and American Adjustment for summary judgments on their counterclaims against plaintiff for malicious prosecution. He dismissed the original action as to Metropolitan for failure to state a cause of action against it. From these dispositions defendant Smith only claimed appeal. We limit our consideration to that appeal claimed.

We reverse as to his entry of summary judgment for plaintiffs against defendant Arthur N. Smith, because in order to grant summary judgment against defendant Smith, the judge had to accept the plaintiffs' version of the testimonial record as credible and to reject that of the defendant as unworthy of credence. We think the sharp issue of fact as to delivery or nondelivery instanter of the assignment of the voting rights, essential to full performance of the written agreement alone mandated hearing on the merits. We believe the trial judge himself answered the decisive question when he remarked from the bench:

'As I say I would like to bend over backwards and give the defendant his full day in court, but I can't quite accept it.' (Emphasis supplied.)

The 'it,' we think, the court referred to was defendant Smith's testimony. We note he further added on the question of nondelivery of the voting rights:

'The testimony indicates to the contrary.'

We are mindful that Judge Piggins, sitting as the trier of the facts, would have been the sole judge of the weight of the testimony including what inferences might be properly drawn therefrom. He would as well have been the sole judge of the credibility of the witnesses. Passing only as he was on the question of whether an issue of fact existed, we are constrained and hold he entered upon the area that was reserved for the trier of the facts, whether court or jury. It is the more important that we so hold here in this case where no jury was demanded so that the circuit bench and profession may know that the rule concerning the inviolability of resolution of genuine fact issues is for the trier of facts alone. Justice Black, for a unanimous participating Court, in Hughes v. John Hancock Mutual Life Insurance Co., 351 Mich. 302, wrote at p. 308, 88 N.W.2d 557, at p. 561, setting forth the rule:

'As was said by Justice Cooley (in Woodin v. Durfee, 46 Mich. 424, 427 where the trial judge had directed a verdict...