Miller Glass Co., Inc. v. Kushmaul , 13 Mich. App. 346 ( 1968 )

13 Mich. App. 346 (1968) 164 N.W.2d 390

MILLER GLASS CO., INC.
v.
KUSHMAUL

Docket No. 4,206.

Michigan Court of Appeals.

Decided September 24, 1968.

Lokker, Boter & Dalman, for plaintiff.

Robert L. Miles, for defendants.

C. KAUFMAN, J.

This is an appeal by plaintiff to review an order entitled a "Judgment of Dismissal" entered July 26, 1967, by the circuit court for the county of Osceola.

It appears that the plaintiff instituted an action April 10, 1967, requesting specific performance of an alleged agreement to sell and convey real estate. The complaint claims that defendant husband conducted a business known as Miller Glass Co., which had been operated as a sole proprietorship. It further states that on or about May 16, 1960, he caused to be incorporated a company known as Miller Glass Co., Inc., which was to acquire all the assets of the business formerly operated as the sole proprietorship, and continued operating it as a corporation. Plaintiff claims that all the assets and business of Miller Glass Co. were sold to plaintiff for 6,000 shares of plaintiff corporation and that defendant wife agreed to the sale and to join in the conveyance of any realty used by Miller Glass Co. According to the complaint the realty here in question was to be transferred to plaintiff, and after June 30, 1960, it was carried on the books of plaintiff corporation as an asset and appropriate deductions were taken for tax purposes.

Subsequently, on or about June 20, 1966, defendant husband sold all the stock in plaintiff corporation to Elzinga & Volkers, Inc., and defendants represented that the realty in question was an asset of plaintiff corporation which representation, it is alleged, induced the sale of stock in plaintiff corporation. Plaintiff alleges that it has fully performed the agreement and that it is entitled to a conveyance of the realty in question from defendants.

On July 20, 1967, the defendants moved for "summary or accelerated judgment of dismissal." The sole ground raised was that the statute of frauds, CL 1948, § 566.106 (Stat Ann 1963 Rev § 26.906) barred the action. The misnomer of the motion was ignored by the trial judge who decided the motion on its merits. Despite the apparent confusion, this should and will be considered as a motion for accelerated judgment brought under GCR 1963, 116.1 (5).^[*] The sole issue for this court to decide is whether the granting of an accelerated judgment under the aforesaid section was proper.

At the hearing on the motion, plaintiff cited CL 1948, § 566.110 (Stat Ann 1953 Rev § 26.910) as the basis for raising a question of fact and therefore defeating the motion, since full performance had been alleged. The cases are numerous on the point that part or full performance, in proper circumstances, will remove the agreement from the operation of the statute of frauds. Annotations, Stat Ann 1953 Rev § 26.910.

It is interesting to note that defendants cite Consolidated Properties, Inc. v. Henry Ford Trade School Alumni Association (1967), 7 Mich. App. 383, to bolster their contention that this complaint is barred by the statute of frauds. In that case the trial judge, the writer of this opinion, granted the accelerated judgment. The difference between that case and the instant case is that in Consolidated Properties the plaintiff did not claim either part or full performance to take the case outside the statute; rather, it contended that certain documents did constitute a writing to put the matter within the statute of frauds. The trial court determined and the Court of Appeals affirmed that as a matter of law there was no sufficient writing to constitute a compliance with the statute.

The rule is well settled that on a motion for an accelerated judgment, all well-pleaded allegations in the complaint must not only be considered but accepted as true for the purpose of deciding the motion, Janiszewski v. Behrmann (1956), 345 Mich. 8. In the instant case, plaintiff alleges an agreement, full performance by plaintiff and a failure by defendants to convey. The case of Kent v. Bell (1965), 374 Mich. 646 stands for the proposition that full performance by a plaintiff of a contract involving land may suffice to take an oral agreement out of the statute of frauds.

The fact that the complaint alleges an exception to the statute of frauds and that an issue of fact is raised which, if resolved in plaintiff's favor could result in a judgment in its favor, mandates that an accelerated judgment cannot be rendered in this case.

This Court will not consider the defense of the statute of limitations which is raised for the first time on this appeal and is therefore not properly before us.

This matter is remanded to the trial court for a determination on the merits.

Costs to appellants.

McGREGOR, P.J., and HOLBROOK, J., concurred.

NOTES

[*] The motion for summary judgment is governed by GCR 1963, 117.