Appeal from Branch, Charles L. Falahee, J.
T. M. Burns, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.
1. Bills and Notes -- Promissory Notes -- Defenses -- Lack of Consideration.
Lack or failure of consideration is a good defense against any person not a holder in due course in a suit on a promissory note.
2. Judgments -- Default Judgments -- Admissions -- Codefendants.
An admission predicated upon a default judgment only operates against the particular party who defaults; it does not bind a co-defendant who appears and contests the litigation.
The opinion of the court was delivered by: Cavanagh
Complaint by Eithel Klimmer against Gerald Klimmer and Barbara Klimmer to enforce a promissory note. Summary judgment for plaintiff. Defendant Barbara Klimmer appeals.
Defendant Barbara Klimmer appeals from an order granting partial summary judgment for plaintiff.
On May 2, 1974, plaintiff sued her son, Gerald Klimmer, and his wife, Barbara Klimmer, for $12,000 allegedly loaned to them, plus interest. The complaint alleged that on or about December 31, 1962, plaintiff loaned the defendants $7,000, which had not been repaid. A copy of a promissory note for that amount, plus interest, signed by both Gerald and Barbara Klimmer was attached to the complaint.
On June 10, 1974, defendant Barbara Klimmer answered and denied having borrowed any money whatsoever from plaintiff and denied having borrowed $7,000 or any other amount on or about December 31, 1962. She admitted that she signed the promissory note at the request of her husband. She alleged, however, that neither she nor Gerald Klimmer received any consideration for the note.
On July 2, 1974, defendant Gerald Klimmer was defaulted. Plaintiff then moved for partial summary judgment as to the $7,000 note on the grounds that defendant Barbara Klimmer had failed to state a valid defense to the plaintiff's claim with respect to the note, GCR 1963, 117.2(2). Defendant Barbara Klimmer responded that, although defendants signed the note, no consideration was received by either defendant and that lack of consideration stated a valid defense to plaintiff's claim on the note.
In a written opinion the trial court granted plaintiff partial summary judgment. With regard to the defense of lack of consideration, the court found defendant Barbara Klimmer bound by the default judgment taken against Gerald Klimmer:
" * * * Barbara Klimmer does not deny signing the note, however, she claims that she did not receive any consideration for her signature, and she further claims that her husband at the time, Gerald Klimmer, didn't receive any consideration. Gerald Klimmer did not file an ...