Glaser's Elevator & Lumber Co. v. Perry , 49 Mich. App. 604 ( 1973 )

J. H. Gillis, J.

Plaintiff, Glaser’s Elevator & Lumber Company, during several months in 1967, supplied defendant, Kenneth Perry, a residential building contractor, with construction materials. Although defendant had been paid for completion of the building projects, plaintiff was not paid. Plaintiff brought suit, alleging the funds defendant had received were impressed with a trust pursuant to MCLA 570.151 et seq.; MSA 26.331 et seq.

Defendant alleged in his first responsive pleading that any obligation to plaintiff belonged to Ken Perry Builder, Inc., which was alleged to be a duly licensed Michigan corporation, and that he was not liable individually.

Pretrial discovery revealed defendant, during the time the debts were incurred, had filed an assumed name certificate to the effect he was doing business as "Ken Perry Builder”. Also, during the time the debts were incurred, defendant was secretary, treasurer, and principal shareholder of Ken Perry Builder, Inc.

Further discovery revealed the corporation had not filed its annual report for 1967 pursuant to MCLA 450.82; MSA 21.82. Depositions and interrogatories narrowed the issues to a question of who owed the debt, not whether it was owed.

Plaintiff’s motion for summary judgment was granted before trial. Defendant appeals.

We hold defendant had failed to state a valid defense to the claim asserted against him. See GCR 1963, 117.2(2). The interposition of the corporate entity as the principal debtor did not relieve defendant of personal liability on the claim. MCLA 450.87; MSA 21.87, provides that the failure of the corporation to file an annual report results in suspension of its corporate powers and that:

"Any officer * * * of such corporation so in default who has neglected or refused to join in making of such report * * * shall be liable for all debts of such corporation contracted during the period of such neglect or refusal.”

Thus, whether the debt was incurred by defendant personally, or the corporate entity he sought to interpose, his personal liability was clear. Summary judgment was properly granted.

Affirmed. Costs to appellee.

Fitzgerald, P. J., concurred.