Birch Run Nursery v. Jemal , 52 Mich. App. 23 ( 1974 )

52 Mich. App. 23 (1974) 216 N.W.2d 488

BIRCH RUN NURSERY
v.
JEMAL

Docket No. 16508.

Michigan Court of Appeals.

Decided March 6, 1974.

Frederick W. Zizelman, Jr., for plaintiffs.

Alexander J. Jemal, Jr., for defendants.

Before: McGREGOR, P.J., and J.H. GILLIS and O'HARA,^[*] JJ.

J.H. GILLIS, J.

The trial court granted defendants' motion for accelerated judgment and summary judgment pursuant to GCR 1963, 116 and 117.^[1] Plaintiffs appeal as of right. On appeal, we accept as true the well-pleaded facts in plaintiffs' complaint. Harrison v Arrow Metal Products Corp, 20 Mich. App. 590; 174 NW2d 875 (1969); Johnston's Administrator v United Airlines, 23 Mich. App. 279; 178 NW2d 536 (1970).

The claims of plaintiff, Birch Run Nursery, an alleged Michigan copartnership, and plaintiffs Arthur R. Alexander and Hugh Alexander, in their capacity as surviving partners, are asserted in counts one and two of the four-count complaint.^[2] These counts allege that Virginia Alexander, with intent to defraud, breached an agreement to convey to the partnership, at its request, certain partnership property she held in her own name.

Birch Run Nursery failed to file a certificate of partnership as required by MCLA 449.101; MSA 20.111. Therefore, it is prohibited from maintaining any action in our courts. MCLA 449.106; MSA 20.118; Smith v Erla, 317 Mich. 109; 26 NW2d 728 (1947). The trial court correctly dismissed Birch Run's claims. GCR 1963, 116.1(3).

Likewise, the motion for accelerated judgment was properly granted as to plaintiffs Arthur and Hugh Alexander, as partners. GCR 1963, 116.1(3). Partners are agents of the partnership. MCLA 449.9; MSA 20.9. An agent is a deputy, appointed by his principal, with power to do those things which the principal can do. Burton v Burton, 332 Mich. 326; 51 NW2d 297 (1952). It follows that an agent has no authority to act if his principal is without authority. Therefore, since the principal, Birch Run Nursery, lacks capacity to sue, MCLA 449.106; MSA 20.118, so do its agents, Arthur and Hugh Alexander.

Arthur Alexander's claims, as special administrator of Ferdinand Alexander's estate, are asserted in counts three and four. He alleges that defendants are improperly in possession of some of decedent's personal effects. A special administrator may bring an action on behalf of the estate only upon an order of the probate court. MCLA 702.61; MSA 27.3178(131); Wright v Brown, 317 Mich. 561; 27 NW2d 97 (1947). The briefs and record indicate that Arthur lacked probate court authorization to represent the estate in this cause. Therefore, dismissal of his claims as special administrator was correct. GCR 1963, 116.1(5).

Lastly, the complaint nowhere alleges injury to plaintiffs Arthur and Hugh Alexander as individuals. Having "failed to state a claim upon which relief can be granted", GCR 1963, 117.2(1), the trial court properly granted defendants' motion for summary judgment as to these plaintiffs.

Affirmed. Costs to appellees.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] While defendants' motion was labeled only "motion for accelerated judgment", it raised grounds appropriate under both GCR 1963, 116 and 117. An incorrectly labeled motion is considered as if correctly labeled, absent prejudice to the other party. Cibor v Oakwood Hospital, 14 Mich. App. 1; 165 NW2d 326 (1968); 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 337. There was no prejudice here.

[2] Defendants deny that Birch Run Nursery was ever operated as a partnership. They claim that the nursery was the sole proprietorship of Ferdinand Alexander. Several exhibits support their position. While we find it unnecessary to decide this question, we tend to agree with the trial judge's conclusion that plaintiffs' assertion of a partnership is "fantastic".