Flint & P.M.R. Co. v. Donovan

• Decision Date: 30 December 1895
• Citation: 108 Mich. 80,65 N.W. 583
• Parties: FLINT & P.M.R. CO. v. DONOVAN, CIRCUIT JUDGE.
• Court: Michigan Supreme Court

65 N.W. 583

108 Mich. 80

FLINT & P.M.R. CO. v. DONOVAN, CIRCUIT JUDGE.

Supreme Court of Michigan

December 30, 1895

Petition by the Flint & Pere Marquette Railroad Company against J. W. Donovan, Wayne circuit judge, for a writ of mandamus. Writ denied.

Henry M. Campbell, for relator.

Dickinson, Thurber & Stevenson, for respondent.

HOOKER, J.

The firm of Moore & Moore, as plaintiffs, commenced action against relator, filing a declaration upon the common counts. Subsequently, and after the period of the statute of limitations had run, they filed, by leave of court, an amended declaration, consisting of four special counts and the common counts. Two of these special counts alleged the making by plaintiffs, and submission to defendant, of certain plans for a union depot, and promise by defendant, if they should accept and use them, to pay a price named, and the subsequent acceptance and use, and refusal to pay. The other two alleged the submission of said plans to defendant, and its agreement, if they should be accepted, to employ plaintiffs in securing the property necessary for said depot and necessary tracks, for a price named, the subsequent acceptance, and refusal to employ plaintiffs, and a claim for damages for the breach of said agreement.

The two counts last mentioned do not cover causes of action that could be proved under the common counts, being for breach of special contract. The other two counts state causes of action which apparently might be so proved, inasmuch as the contract is alleged to have been fully performed, and nothing remained but the payment of the contract price in money. Phippen v. Morehouse, 50 Mich. 537, 15 N.W. 895; Thomas v. Caulkett, 57 Mich. 392, 24 N.W. 154; Shaw v. Bradley, 59 Mich. 199, 26 N.W. 331; Bush v. Brooks, 70 Mich. 446, 38 N.W. 562. Hence the first two counts mentioned introduced a new cause of action. The others did not. It was therefore within the discretion of the circuit court to permit the filing of the last two, but not the first two counts mentioned herein. The writ should not issue, inasmuch as the relator is not entitled to the order asked, viz. that the order of the circuit court be vacated; but we have no doubt that the circuit court, upon a proper application, will make the order to which the relator is entitled. Neither party will be allowed costs. The other justices concurred.