Opinion
Docket No. 88, Calendar No. 38,987.
Submitted June 10, 1936.
Decided September 2, 1936.
Appeal from Kent; Verdier (Leonard D.), J. Submitted June 10, 1936. (Docket No. 88, Calendar No. 38,987.) Decided September 2, 1936.
Assumpsit by Nicholas Scripsema against Lewis M. DeKorne and another on a promissory note. Summary judgment for plaintiff. Defendants appeal. Reversed and remanded.
Norris, McPherson, Harrington Waer ( John C. Cary, of counsel), for plaintiff.
Cornelius Hoffius, for defendants.
This is review of a summary judgment for plaintiff.
In affidavit in support of his motion, plaintiff stated that he was president, general manager and principal stockholder of Yeakey-Scripps, Inc.; that defendants were active managers, stockholders and directors actively interested in DeKorne Furniture Company, Inc.; that DeKorne Furniture Company, Inc., had owed Yeakey-Scripps, Inc., $3,835.81; that the furniture company was in straitened circumstances and made a compromise offer of 25 per cent. to plaintiff for the Yeakey-Scripps, Inc.; that plaintiff, for his company, refused to accept the offer unless he or his company were given a note for the balance; that subsequently plaintiff received the note in question which is signed by defendants and runs to plaintiff personally and covers the balance of the accounts; that the consideration of the note was "the forbearance of plaintiff and Yeakey-Scripps, Inc., against said DeKorne Furniture Company, Inc., for said balance, the amount of said note."
One of the defendants made affidavit in opposition to the motion, stating that the note is void for want of consideration; that neither of the defendants was indebted to the plaintiff, and no consideration was paid to the defendants for the giving of the note; that the DeKorne Furniture Company, Inc., made an agreement with all its general creditors to accept 25 per cent. in full compromise and settlement of their claims; that the Yeakey-Scripps, Inc., received the amount and gave receipt in full settlement and satisfaction of its claim; that some six weeks later plaintiff obtained the note from defendants without consideration; and that no consideration moved between the parties hereto.
Both of the affidavits are subject to the criticism that they dealt principally with conclusions rather than with statements of fact. Had plaintiff more particularly set up the consideration for the note, we would be inclined to hold that defendants' denial of consideration was not sufficiently specific. But, as both affidavits are on the border line, summary judgment should not be entered.
Reversed and remanded for trial, with costs.
NORTH, C.J., and WIEST, BUTZEL, BUSHNELL, EDWARD M. SHARPE, and TOY, JJ., concurred. POTTER, J., did not sit.