Berry v. Chrysler Corporation, 9977.
| Decision Date | 23 July 1945 |
| Docket Number | No. 9977.,9977. |
| Citation | 150 F.2d 1002 |
| Parties | BERRY et al. v. CHRYSLER CORPORATION. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Donald F. Pascoe, of Detroit, Mich. (Bratton & Bratton, of Detroit, Mich., on the brief), for appellants.
Roger W. Rogers, of Detroit, Mich. (Edward P. Wright and Dickinson, Wright, Davis, McKean & Cudlip, all of Detroit, Mich., on the brief), for appellee.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
This case presents the question of the application of the statute of limitations of the State of Michigan to an action alleging fraud and deceit in the procurement of a series of contracts. The defense of the statute was raised by motion to dismiss, which was sustained by the District Court. Appellants contend that the dismissal constituted reversible error, both upon the ground that the defense should have been raised by answer, and also upon the merits.
The first contention is based upon the provisions of Rule 8(c) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which in its pertinent portion reads as follows:
"In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * *"
This rule has been strictly applied in certain recent District Court cases, Dirk Ter Haar v. Seaboard Oil Co. of Delaware, D.C., 1 F.R.D. 598; Kraushaar v. Leschin, D.C., 4 F.R.D. 143, but a number of other cases have held to the contrary. Leimer v. State Mutual Life Assur. Co. of Worcester, Mass., 8 Cir., 108 F.2d 302, 305, 306; Continental Collieries, Inc., v. Shober, Jr., 3 Cir., 130 F.2d 631, 636. Cf. Tahir Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865, 870. We think that for this circuit the matter is concluded by our decision in A. G. Reeves Steel Construction Co. v. Weiss, 6 Cir., 119 F.2d 472, in which precisely the same contention was made. The appellant there urged that § 1113(a) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 324, the limitation section, is a limitation upon the remedy, and that since it had not been pleaded as a defense, the court was powerless to consider its applicability on the appeal. The court held, applying Rule 9(f) of the Rules of Civil Procedure, that for the purpose of testing the sufficiency of the pleading, averments of time are material, and that therefore a motion to dismiss because the statute of limitations has run, may be utilized without an affirmative defensive plea or supporting affidavits whenever the time alleged in the petition shows that the cause of action has not been brought within the statutory period.
Our conclusion upon this point is strengthened by the provisions of Rule 12 (b) of the Rules of Civil Procedure, which in part provides:
"Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted. * * *"
The defense of the statute of limitations is covered by clause (6), and therefore is properly raised by motion.
Upon the merits of the case also we think that the judgment of the District Court must be affirmed.
The complaint in substance, taken together with the statement and bill of particulars of the claim, alleges the following facts:
The appellants were induced by appellee's representatives to enter into a series of contracts under the terms of which the appellants were to engage in the sale of automobiles manufactured by the appellee. The representations were made in October, 1934 and shortly thereafter, and culminated in a contract executed December 20, 1934, which was renewed from time to time in contracts identical in form, the last of which was executed March 26, 1937. Both original and renewal contracts provided that No other provision as to duration or...
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