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02/09/76 KARAKAS v. DOST

February 9, 1976

KARAKAS
v.
DOST



Appeal from Tuscola, Norman A. Baguley, J.

Leave to appeal denied, 396 Mich 868.

D. E. Holbrook, P. J., and J. H. Gillis and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. Judgment -- Summary Judgment -- Failure to State Claim -- Legal Sufficiency -- Pleading -- Factual Developments -- Right of Recovery.

A motion for summary judgment based solely on a plaintiff's alleged failure to state a claim upon which relief could be granted challenges the legal sufficiency of the plaintiff's claim and is to be considered by an examination of the pleadings alone; a reviewing court must accept as true all well-pleaded facts in plaintiff's complaint and must determine whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).

2. Judgment -- Writ of Restitution -- Nonpayment of Money -- Material Breach of Contract -- Payment -- Cure -- Statutes.

A writ of restitution shall not issue when a judgment for possession is for nonpayment of moneys due under a tenancy or for nonpayment of moneys required to be paid under an executory contract for the purchase of premises or any other material breach of the contract for purchase if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff and other material breaches of the executory contract for purchase are cured (MCLA 600.5744[6]; MSA 27A.5744[6]).

3. Contracts -- Land Contracts -- Redemption -- Actual Payment -- Tender -- Refusal of Payment -- Cause of Action -- Summary Judgment.

The actual transfer of the entire amount of money due, and not merely a showing of ability and intent to pay, is generally required for a party to comply with redemption statutes, but valid tender is unnecessary where the party attempting to redeem is ready, willing and able to tender and the other party, by his acts or words, shows that tender would not be accepted; therefore a complaint seeking to enforce a right of redemption which contains factual allegations that tender of redemption was not made because the defendants prevented it, or indicated they would not accept it, states a cause of action upon which relief can be granted and summary judgment is improper.

4. Judgment -- Summary Judgment -- Issue of Material Fact -- Record -- Benefit of Doubt -- Deficiency of Claim.

A motion for summary judgment alleging that there is no genuine issue as to any material fact should not be granted unless the record shows that an essential element of proof of the claim or defense cannot be supplied; the court should be liberal in finding that a genuine issue does exist and, giving the benefit of any reasonable doubt to the opposing party, must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome (GCR 1963, 117.2[3]).

5. Vendor and Purchaser -- Tender of Redemption -- Proper Parties.

A defendant seeking to exercise a right of redemption may properly choose to make payment to either the plaintiff or to the plaintiff's attorney as the plaintiff's agent or to the court.

6. Judgment -- Summary Judgment -- Accelerated Judgment -- Grounds -- Res Judicata.

A claim that a suit is barred under the doctrine of res judicata may be a ground for ordering accelerated judgment but not for ordering ...


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