Kahn v. Green , 260 Mich. 632 ( 1932 )

Wiest, J.

This is an appeal from a summary judgment awarded plaintiffs for instalments due on a land contract executed by defendant.

Defendant contends that a triable issue1 of fact was raised by plea and by affidavits in opposition to the motion for summary judgment.

The land contract was executed July 9, 1926, and bound defendant to pay specified instalments. July 21, 1926, defendant assigned the contract to Samuel Geltner, stating therein the contract price and interest “which the said assignee and grantee assumes g,nd agrees to pay. ’ ’ For a time thereafter Mr. Geltner made payments on the contract. Defendant intended to purchase the property, and paid $500 to bind the bargain, but, when the parties met to execute the land contract, defendant claims that he asked to he released from his agreement to purchase and have return of the $500 he had paid, and also claims he then stated that Samuel Geltner would enter into the contract as vendee but could not do so at that time, and it was agreed that the contract should be made to defendant as vendee, and, upon his assignment to Geltner, plaintiffs would look to Geltner for pay. Defendant claims that this arrangement and the subsequent assignment released him from the contract and constituted Mr. Geltner the sole obligor. The novation claimed is the familiar one of substitution of a new debtor and discharge of an old debtor by the creditor. But this required the original relation of debtor on the part of defendant under the contract and substitution of Geltner as sole debtor in his stead by consent of plaintiffs. Instead of novation, defendant really seeks to impeach the written contract by a parol agreement preceding its execution.

The land contract established liability on the part of defendant, and the parol agreement, if made, was. before the execution of the contract and cannot be given any control over the written contract. Defendant’s showing, in opposition to the motion for summary judgment, set forth no defense.

The judgment is affirmed, with costs against defendant.

Clark, C. J., and McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. Butzel, J., did not sit.

On evidence of prior or contemporaneous agreements as varying terms o'f written contract, see annotation in 17 L. R. A. 273.