
    KOLKA v. ATLAS CHEMICAL INDUSTRIES.
    1. Contracts — Employee—Separation Pay — Consideration—Summary Judgment.
    Summary judgment for defendant was proper where plaintiff’s allegations in action against former employer that he remained on inactive payroll under a disability leave of absence at time of plant closing were insufficient to establish consideration, necessary to bind company under offer of separation pay extended to employees when plant was closed since plaintiff in no way gave up the exereise of any legal right (GCR 1963, 117.2).
    2. Judgment — Summary Judgment — Genuine Issue op Material Pact — Employment—Date of Termination.
    Summary judgment for defendant employer on issue of whether plaintiff former employee was qualified for disability pension requiring 15 years of service was improper where a dispute remained over material fact of date of termination of plaintiff’s employment (GCR 1963, 117.2).
    Reference for Points in Headnotes
    [1, 2] 41 Am Jur, Pleading § 340 el seq.
    
    Appeal from Houghton, Condon (Stephen D.), J.
    Submitted Division 3 October 1, 1968, at Marquette.
    (Docket No. 4,475.)
    Decided October 21, 1968.
    Leave to appeal denied February 19, 1969. 381 Mich 803.
    Complaint by Leo J. Kolka against Atlas Chemical Industries, a foreign corporation, for benefits due under disability pension and for separation pay. Summary judgment for defendant on both counts. Plaintiff appeals.
    Affirmed as to count for separation pay but reversed and remanded as to plaintiff’s right to disability benefits.
    
      Wisti, JaasTcelainen & Schroch, for plaintiff.
    
      Messner & LaBine, for defendant.
   Per Curiam.

Leo J. Kolka sued his employer, defendant herein, on two counts. Count I claimed a right to disability pension provided to eligible employees who had 15 years of service; count II claimed a right to separation pay which, though not part of the union contract, was made available by the company in December, 1960, when the plant was closed.

Defendant’s motion for summary judgment, GrCB. 1963, 117.2, on both counts was granted. Plaintiff appeals.

The lower court held, as to the second count, that plaintiff furnished no consideration for defendant’s offer of termination payment and therefore, as a matter of law, no binding contract between the parties existed to make such payment mandatory.

An offer of separation pay, to be accepted by an employee, requires the giving up of or forbearance to exercise some legal right. It was undisputed that plaintiff here had furnished no active service to the company since May, 1959. Therefore, unlike the employees in Cain v. Allen Electric S Equipment Company (1956), 346 Mich 568, he was in no position to comply with or give consideration for an offer of termination pay. Plaintiff’s allegations in this regard, that he remained on the inactive payroll under a disability leave of absence, taken as true and viewed most favorably in his behalf, are insufficient facts to establish the consideration necessary to bind the company under its offer for termination pay. Summary judgment, as to this count, was proper.

As to count I, however, the termination of plaintiff’s employment was a highly disputed fact which could not be disposed of by way of summary judgment. The court, in granting the motion for summary judgment, stated:

“The court finds from the affidavits, together with the pleadings, depositions and documentary evidence filed and submitted by the parties, that plaintiff fails to state a claim upon which relief can be granted. Specifically, it appears that plaintiff does not have 15 years of continuous service in the employ of the defendant.”

It is improper to make such a finding on a motion for summary judgment where there exists a genuine issue of material fact. The matter as to count I is reversed and a trial of the issue ordered.

T. G. Kavanagh, P. J., and McGregor and Philip C. Elliott, JJ., concurred.  