Lumber Coal Co. v. Lubinski , 309 Mich. 662 ( 1944 )

Mr. Justice SHARPE has written for reversal. I am unable to concur. The conclusion reached by my Brother is based wholly upon the trial court's refusal to grant plaintiff's motion, made at the conclusion of plaintiff's proof, to amend his declaration. The purpose of the amendment sought was to enable plaintiff to recover against Anthony A. Lubinski in assumpsit, instead of relying in tort upon the alleged conspiracy to defraud.

In conformity to the practice in the trial court a pretrial hearing had been had in this case. At that time no application for amendment of pleadings was made. However, this circumstance is met by plaintiff's assertion that at the time of the pretrial hearing plaintiff did not possess knowledge of the facts which prompted the motion to amend at the trial of the case. Instead plaintiff asserts that such facts were first developed and became known to plaintiff at the trial on the cross-examination of the defendant Anthony A. Lubinski. But the trial judge might well have been of the opinion that this contention or assertion was entitled to little credence because plaintiff's own records introduced in evidence plainly disclosed that it sold and charged the materials to Anthony A. Lubinski. Further the trial court's refusal to permit the amendment was of no serious disadvantage to plaintiff because it in no way foreclosed plaintiff's right to institute a new suit in assumpsit in which, upon sufficient proof, a judgment in assumpsit could be secured against Mr. Lubinski. Reversal because of refusal to grant a motion to amend is not justifiable except such refusal constitutes an abuse of discretion on the part of the trial judge. This rule is noted in a case from which my Brother quotes as follows:

"As a rule, the permission to amend rests wholly within the discretion of the trial court, and unless this discretion is abused, we will not interfere. This is true irrespective of whether the court refuses or permits the amendment." Grant v.National Manufacturer Plating Co., 258 Mich. 453.

For like holdings see Konstantine v. City of Dearborn,280 Mich. 310; Lau v. Pontiac Commercial Savings Bank,260 Mich. 73; and People, for use of National Regulator Co., v.Rosewarne, 247 Mich. 22. In his discretion the trial judge might have granted plaintiff's motion to amend; but under the circumstances of the instant case denial of the motion was not an abuse of discretion on the part of the trial judge and should not be held to be ground for reversal on this appeal.

The above conclusion necessitates consideration of another phase of the instant appeal. Plaintiff and appellant asserts that the testimony produced was such that the jury might justly have concluded that one or more of the defendants incident to procuring the building material from plaintiff was guilty of fraudulent conduct resulting in damage to plaintiff, and that therefore the trial judge was in error in directing a verdict in favor of all defendants on the ground that there was no testimony tending to sustain the charge in plaintiff's declaration of conspiracy to defraud or of a perpetrated fraud. A careful review of the record brings us to the conclusion that the trial judge was correct in holding that there was no testimony which would justify recovery by plaintiff under the allegations of its declaration. We deem it unnecessary to review the testimony in detail, but the following may be noted.

The basic theory of plaintiff's claim of a right to recover in the tort action is that defendant Andrew Musetti, Jr., failed to secure from the proper officer of plaintiff company approval of credit to Lubinski before delivery of the materials. The undisputed testimony is that this was at the time an oversight on the part of Musetti, Jr., that he "completely forgot" to obtain a signed order and approval of credit to Lubinski. In any event, there is no testimony whatever that any of the other defendants charged with conspiring with Andrew Musetti, Jr., knew of his oversight or neglect of duty. And even on this appeal appellant states in its brief: "If a judgment should be entered in this court, we concede that the judgment should run against the Lubinskis alone and the cause dismissed as to the defendants Musetti." By no stretch of the imagination could it be said that under this record plaintiff is entitled to a judgment against Agnes Lubinski, the wife of Anthony A. Lubinski; and as to the latter, as noted above, there is no testimony tending to show that he was a party to any fraudulent conspiracy or to any fraud in consequence of which the building materials were delivered to Lubinski without first obtaining approval of credit extended incident to the purchase of the materials in question. The trial judge correctly so held.

The judgment entered in the circuit court should be affirmed, with costs to appellees.

REID, J., concurred with NORTH, C.J.