Opinion
Docket No. 22880.
Decided April 18, 1977.
Appeal from Ingham, Jack W. Warren, J. Submitted October 15, 1975, at Lansing. (Docket No. 22880.) Decided April 18, 1977.
Complaint by Philip Ramos and Julia Ramos against C.E. Holmberg, Helen Flury, Sam Saylor, Irene Saylor, Jack M. Ranck and Helga A. Ranck for damages for breach of an implied warranty of habitability of a house purchased and for fraud. Summary judgments in favor of defendants Ranck. Plaintiffs appealed. Affirmed, 67 Mich. App. 470. Plaintiffs' petition for rehearing before the Court of Appeals granted. Previous holding reversed and cause remanded.
David W. Sinclair, for plaintiffs.
Foster, Swift Collins, P.C. (by Clifford D. Weiler), for defendants Jack M. Ranck and Helga A. Ranck.
Before: M.F. CAVANAGH, P.J., and D.E. HOLBROOK, JR. and M.J. KELLY, JJ.
On Rehearing
This case was originally decided February 26, 1976, and published at 67 Mich. App. 470; 241 N.W.2d 253. We granted rehearing principally because one of the authorities relied upon by the majority was later reversed by the Supreme Court. Jeminson v Montgomery Real Estate Co, 396 Mich. 406; 240 N.W.2d 205 (1976).
On rehearing we reverse the decision of the trial court for the reasons outlined in the dissent at 67 Mich. App. 470, 478. The cause is remanded.
It is pointed out by the defendants that entirely unlike the mortgage company in Jeminson the Rancks were not active participants in the transaction involved, did not afford credit or financing and performed merely a ministerial act to acquiesce in the transaction between the immediate sellers, the Saylors, and the plaintiffs. We are not equating the Rancks' position with the mortgage company's position in Jeminson. We are holding only that assuming every well pleaded allegation in plaintiffs' complaint to be true, summary judgment was erroneous.
Plaintiffs have alleged that defendants-appellees suppressed knowledge that the premises in question were uninhabitable and literally disintegrating. On favorable view we hold that plaintiff's claim is not "so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery". Crowther v Ross Chemical Manufacturing Co, 42 Mich. App. 426, 431; 202 N.W.2d 577 (1972).
We consider it unnecessary to reprint here the dissenting opinion referred to above.
Reversed and remanded.
M.F. CAVANAGH, P.J., concurred.
The fact that Jeminson v Montgomery Real Estate Co, 47 Mich. App. 731; 210 N.W.2d 10 (1973), was subsequently reversed by the Supreme Court in 396 Mich. 106; 240 N.W.2d 205 (1976), does not change my opinion as to the disposition of this case. Hence, for the reasons set forth in my original opinion, 67 Mich. App. 470; 241 N.W.2d 253 (1976), and commencing with the first full paragraph on page 475 thereof and continuing to the end, I respectfully dissent.