Glenhurst Construction Co. v. Daniel

181 N.W.2d 25, 25 Mich. App. 115, 1970 Mich. App. LEXIS 1523

Opinion

Per Curiam.

The trial court granted plaintiff specific performance of land contracts executed by defendants. On appeal, defendants contend it was reversible error for the trial court to strike from the record certain testimony by defendant Cecil E. Daniel.

The testimony involved related to defendants’ claim that they were induced to execute the contracts by fraudulent representations of plaintiff’s assignor. Plaintiff objected to the testimony, and it was received on condition that it did not vary the terms of the contract. The trial court granted plaintiff’s motion to strike the testimony.

The trial court was correct. The defense attempted to be raised by this testimony was not pleaded as required by GCR 1963, 112.2 and 111.7. If not pleaded, the defense is waived. GCR 1963, 111.3. The record discloses no motion to amend to include fraud as a defense. GCR 1963, 118.3.

Defendants’ claim to additional interest has been conceded by plaintiff which tenders the amount thereof, $368.48.

Affirmed on payment of $368.48 by plaintiff to defendants, with costs to plaintiff.