Cohen v. Peerless Soda Fountain Serv. Co., 123.

• Decision Date: 04 April 1932
• Docket Number: No. 123.,123.
• Citation: 257 Mich. 679,241 N.W. 810
• Parties: COHEN v. PEERLESS SODA FOUNTAIN SERVICE CO.
• Court: Michigan Supreme Court

257 Mich. 679

241 N.W. 810

COHEN

v.PEERLESS SODA FOUNTAIN SERVICE CO.

No. 123.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Wayne County; Allan Campbell, Judge.

Action by Harry Cohen against the Peerless Soda Fountain Service Company. From the judgment, defendant appeals.

Reversed and remanded.

Argued before the Entire Bench.Max Kahn, of Detroit (L. V. Pylkas, of Detroit, of counsel), for appellant.

Wm. Henry Gallagher and John Sklar, both of Detroit, for appellee.

BUTZEL, J.

Harry Cohen, an attorney of Detroit, plaintiff, was retained by Peerless Soda Fountain Company, a Delaware corporation, defendant, to look after a large amount of business, consisting principally of collections on title retention contracts. He claims that there is a balance of $2,420.35 due him for services and costs after deducting the sum of $364.35 paid him for specific items. The instant suit was begun on July 3, 1931, and twelve days later plaintiff filed a verified bill of particulars. Sixty-three different cases are therein separately listed, and the services rendered in each of them are set forth, some with a greater degree of particularity than others, but none showing the amount of work or the time devoted to each case. Some of the charges are solely for ‘correspondence and conferences.’ The bill of particulars indicates that plaintiff did perform a very large amount of work for defendant. This included the instituting of twenty-six suits in circuit courts, some of which were outside of Wayne county. Without testimony, however, it is impossible to tell whether the charges are fair and reasonable or too large or small. Defendant, in a verified answer to plaintiff's declaration, admits that it intrusted the business to plaintiff, but denies that the fair and reasonable value of the services is the amount charged. It makes other claims that would negative plaintiff's right of recovery. It does not deny the claims paragraph by paragraph, but it does state ‘that each and all of the charges set forth in plaintiff's verified bill of particulars are exorbitant; that the various and sundry services alleged in said verified bill of particulars do not exist in fact and were not rendered by plaintiff, and that in all of the instances set forth in plaintiff's bill of particulars the bulk of the alleged services rendered consisted of letters written in reply to repeated demands for information,’ etc.

On August 11, 1931, plaintiff filed a motion for judgment upon the pleadings, on account of defendant's failure to file a verified answer specifically denying each and every one of the items contained in plaintiff's bill of complaint. He bases his right to recover on rule 20, section 5, of Michigan court rules, which is as follows: ‘Whenever a bill of particulars is verified by oath, the items thereof shall be deemed admitted except in so far as the opposite party shall file an affidavit within fifteen days specifically denying the same, and as to each item denied, stating the facts upon which such denial is based.’

Defendant filed an answer to the motion, and asserted that the verified answer theretofore filed by it constituted a sufficient denial of plaintiff's bill of particulars. The court held otherwise, but granted an extension of time within which defendant could file an...