Detroit Indep. Sprinkler Co. v. Plywood Prods. Corp.

• Decision Date: 09 April 1945
• Docket Number: No. 4.,4.
• Citation: Detroit Indep. Sprinkler Co. v. Plywood Prods. Corp., 311 Mich. 226, 18 N.W.2d 387 (Mich. 1945)
• Parties: DETROIT INDEPENDENT SPRINKLER co. v. PLYWOOD PRODUCTS CORPORATION.
• Court: Michigan Supreme Court

311 Mich. 226

18 N.W.2d 387

DETROIT INDEPENDENT SPRINKLER co.

v.PLYWOOD PRODUCTS CORPORATION.

No. 4.

Supreme Court of Michigan.

April 9, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Action by Detroit Independent Sprinkler Company against Plywood Products Corporation for breach of contract. From a judgment for plaintiff for $12,000, the defendant appeals.

Judgment affirmed.

Before the Entire Bench.

Emil Anneke and A. H. & A. W. McMillan, all of Bay City, for appellant.

Smith & Brooker, of Bay City, for appellee.

BUSHNELL, Justice.

On June 2, 1943, plaintiff Detroit Independent Sprinkler Company filed an affidavit for a writ of attachment, addressed to defendant Plywood Products Corporation, a Michigan corporation, notifying it that a suit had been commenced in which damages were claimed not exceeding $15,000. On July 22nd plaintiffs filed a declaration in which it was claimed that the indebtedness arose out of defendant's breach of a contract, wherein it had agreed to pay plaintiffs $62,250 for the installation of a wet and dry pipe system of fire extinguishing apparatus in a plant located at Hampton, South Carolina. The writ of attachment was returned and filed on June 26th.

Defendant filed an answer on August 16, 1943, in which it denied any liability to plaintiffs and claimed that plaintiffs had refused and neglected to perform the contract. To this answer plaintiffs filed a reply on October 7, 1943, and upon issues thus framed the matter came on to be heard in the circuit court on February 10, 1944.

Before any testimony was taken, defendant's counsel moved to amend the answer by striking out the paragraph thereof in which it had admitted that the plaintiff is a Michigan corporation, and substitute therefor the following: ‘Defendant admits that it is a Michigan corporation but denies that plaintiff is a Michigan corporation.’

Whereupon plaintiffs' counsel stated that, because of the motion, he desired to correct the misnomer of the party plaintiff and informedthe court that plaintiff is not a corporation but is a partnership made up of R. C. Siewart and Hyman Slakter. Defendant's counsel then insisted that he was entitled to have the action dismissed because plaintiffs proposed to substitute ‘an entirely different entity.’ Upon the several motions the court ruled that a continuance would be granted and plaintiffs' amendment permitted. Plaintiffs objected to a continuance and, after considerable colloquy, defendant insisted upon maintaining the position that it was entitled to a discontinuance, whereupon the court granted the amendment and denied a continuance.

After proofs were taken, the trial judge sitting without a jury rendered a verdict in favor of plaintiffs in the sum of $12,000, and entered judgment thereon. On appeal, defendant seeks reversal principally upon the ground that the court erred in not granting its motion to dismiss when it appeared that the suit was begun in the name of ‘a non-existent corporation,’ and in permitting the substitution of a copartnership therefor and amending the attachment proceedings in this respect. Defendant also insists that the proofs show that plaintiffs failed in their duty to obtain a satisfactory priority order from the Office of Production Management to permit the installation of the sprinkler system, and that the performance of the contract was frustrated by war conditions. It further insists that plaintiffs failed to tender performance of their contractual liability within a reasonable time; that the verdict of the trial judge is against the weight of the evidence, and that excessive damages were allowed.

Under the terms of the written contract, plaintiffs agreed to equip defendant's plant with a fire extinguishing system consisting of 3,599 wet pipe automatic sprinklers and 236 dry pipe automatic sprinklers. The contract consists of a proposal dated September 15, 1941, to which are attached complete specifications and a written acceptance by defendant dated September 16, 1941. These papers are silent as to Office of Production Management priorities, although the priority system had already been established by executive orders in accordance with certain acts of Congress. The record contains the applicable orders and regulations, together with a preference rating certificate dated October 30, 1941, secured by defendant and forwarded by it to plaintiffs under date of November 7, 1941. This priority, an a-10 priority rating, was not high enough to enable the work to proceed and correspondence ensued between the parties regarding this difficulty. It is enough to say that defendant assumed the responsibility of securing the priority rating and cannot now complain as to its insufficiency.

Plaintiffs prepared plans for the job, sent two of their employees to Hampton to survey the requirements, but never shipped any material nor performed any installation work on the job, because of the insufficient priority rating. Some time late in 1942, defendant took the position that plaintiffs had abandoned the job; it filed and secured a higher priority rating, and arranged to have the sprinkler system thereafter installed by another contractor,...