Swain v. Kayko

I do not believe this to be a proper case for the entry of summary judgment.

The facts are set out in the majority opinion. Those that bear reiteration here are the tender by Kayko and rejection by Swain of corporate checks of Swain Industries, Inc., as the first semiannual option payment under the contract, and the fail*505ure of Kayko to make actual tender of the second semiannual option payment.

The trial judge relied on the latter fact in granting summary judgment in favor of Swain. The majority look to the former in affirming his decision.

The trial judge recognized, as does the majority of our…