Stephenson v. Guardian Trust Co. , 289 Mich. 237 ( 1939 )

On October 13, 1938, plaintiff filed a declaration in the circuit court of Wayne county in which it is alleged that plaintiff is a resident of Wayne county and defendant is a Michigan corporation with its principal office in the city of Detroit; that on or about February 13, 1930, William Prost, being the owner of certain real estate, appointed defendant company his agent to lease, operate and collect rents on said property and such authority was granted by a written instrument; that defendant has operated the premises, collected the rents and is indebted to said William Prost in the sum of $40,000; that on March 19, 1936, William Prost sold the premises, including the rents collected by defendant, to plaintiff herein and defendant now refuses to pay plaintiff any part of the rents collected; that prior to March 19, 1938, defendant admitted to plaintiff that it was owing to said Prost the sum of $15,000 or over; that relying on said statement by defendant, plaintiff purchased the rents and rights of action against the defendant; that, subsequently, plaintiff served on defendant a notice of cancellation of the Prost power of attorney; that on or about March 23, 1938, defendant took possession of the premises and is accountable to plaintiff for all money received as rents, and further liable for treble damages for forcible entry and detainer; that defendant is indebted to plaintiff in the sum of $40,000 for money had and received by it for the use and benefit of plaintiff; and that defendant is indebted to plaintiff in the further sum of $40,000 on account stated between them.

November 18, 1938, defendant filed a motion to dismiss plaintiff's suit for the following reasons: First, said declaration does not contain a plain and concise statement of facts; the counts of said declaration are not indicated or numbered; the written instrument in the declaration is not set out or described, nor is a copy attached to the declaration, or a statement made that the written instrument is in the possession of defendant. Second, that the declaration does not comply with Court Rule No. 19 (1933) in that it does not contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend; and that the different counts in the declaration are not designated as such and numbered consecutively.

On November 23, 1938, plaintiff's attorney wrote defendant's attorney that certain numbered paragraphs in the declaration, namely, paragraphs 11 and 12, are common counts under which plaintiff seeks to recover for items of which the defendant, by reason of its being the collection agent, and having direct knowledge of what was done, and of which plaintiff can learn only from defendant, and because the particulars are more fully within the knowledge of the defendant than of the plaintiff, he is unable to specify.

On December 9, 1938, the trial court entered the following order:

"It is ordered that the plaintiff's declaration heretofore filed in this cause be and the same hereby is dismissed unless the plaintiff file in said cause within 10 days after date of this order and serve upon defendant's counsel an amended declaration, which said declaration shall comply with the Michigan court rules and the statutes of the State of Michigan relative thereto; and in default thereof, it is ordered that the said cause shall be and stand dismissed."

Plaintiff declined further to amend his declaration, furnish a copy of the written instrument relied upon or give any additional information concerning his claim. Plaintiff's declaration was dismissed and he now appeals. He contends that his declaration complies with Court Rules Nos. 17 and 19 (1933); and that under section 1 of Court Rule No. 20 (1933) it is not necessary to file a bill of particulars.

Court Rule No. 17 (1933) reads as follows:

"1. All pleadings must contain a plain and concise statement without repetition of the facts on which the pleader relies in stating his cause of action or defense, and no other. Each count or division of a pleading shall, so far as practicable, be divided into paragraphs consecutively numbered, each containing as near as may be a separate allegation. Dates, sums and numbers may be expressed in either figures or in words. * * *

"5. Whenever a cause of action or defense is based upon a written instrument or document, the substance only of such instrument or document shall be set forth in the pleading. * * * and except where * * * the same (instrument or document) or a copy thereof is in possession of the opposite party and so stated in the pleading to be, a copy thereof shall be attached to the pleading as an exhibit."

Court Rule No. 19 (1933) reads as follows:

"1. The declaration shall contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend. Each allegation shall be set forth in a separate paragraph, and the various paragraphs shall be numbered consecutively. * * *

"3. The different counts of a declaration shall be designated as such and numbered consecutively."

Section 14118, 3 Comp. Laws 1929 (Stat. Ann. § 27.812), provides that no declaration shall be deemed insufficient which contains information as shall reasonably inform defendant of the nature of the case he is called upon to defend.

The record shows that prior to a hearing on defendant's motion to dismiss, plaintiff and his attorney inspected the books of defendant company and could have furnished such information as was ordered by the trial court. It was not required that plaintiff furnish a copy of defendant's books, but he should be required to furnish a copy of the written instrument mentioned in his declaration, especially in view of the fact that the written instrument is a material part of plaintiff's claim on the theory mentioned in count one of his declaration.

The rules of pleading have been liberalized, Von Zellen v.Westrom, 274 Mich. 555, yet not to such an extent as will excuse the failure to furnish a copy of a written instrument pleaded in the declaration.

The order of the lower court is affirmed, with costs to defendant.

BUTZEL, C.J., and WIEST, BUSHNELL, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.