Hydr-O-Matic Pump Division, Weil-McLain Co., Inc. v. G & M Underground Contracting Co., Inc., HYDR-O-MATIC

Decision Date04 November 1980
Docket NumberDocket No. 49118,WEIL-M,HYDR-O-MATIC
Citation301 N.W.2d 26,101 Mich.App. 376
PartiesPUMP DIVISION,cLAIN COMPANY, INC., a foreign corporation, Plaintiff-Appellee, v. G & M UNDERGROUND CONTRACTING COMPANY, INC., a Michigan Corporation, AlliedAggregate Transportation Company, Inc., a Michigan Corporation, AmericanCasualty Company, a foreign corporation, Defendants-Appellants. 101 Mich.App. 376, 301 N.W.2d 26
CourtCourt of Appeal of Michigan — District of US

Thomas M. Doyle, James D. Bruno, Lansing, for defendants-appellants.

[101 MICHAPP 377] Raymond G. Glime, Charles E. Turnbull, Mt. Clemens, for plaintiff-appellee.

Before GILLIS, P. J., and V. J. BRENNAN and MILLER, * JJ.

GILLIS, Presiding Judge.

Defendants, G & M Underground Contracting Company, Inc., Allied Aggregate Transportation Company, Inc., and American Casualty Company, appeal from the trial court's entry of judgment in plaintiff's favor in the amount of $90,000. This sum represents the total purchase price for two lift stations manufactured by plaintiff pursuant to a contract between plaintiff and defendants G & M and Allied. American Casualty Company is the statutory surety required by M.C.L. § 129.201; M.S.A. § 5.2321(1).

Defendants raise two issues on appeal. They first assert that the trial court erred in granting plaintiff's motion for summary judgment. The second claimed error resulted from the trial court's failure to order the defendants to submit their proofs prior to plaintiff's presentation, pursuant to GCR 1963, 507.2. Plaintiff presents a counterstated issue: whether the trial court properly entered judgment in favor of plaintiff after defendants rested without introducing any evidence of their alleged affirmative defenses. In order to resolve the conflict presented by this case, it is necessary to [101 MICHAPP 378] review in some detail the pleadings and discovery filed in this case.

On August 15, 1978, plaintiff filed a two-count complaint in Macomb County Circuit Court. The complaint alleged in pertinent part as follows in Count I:

"3. That on June 2, 1976, Defendant, General Contractors, entered into the contract with Washington Township of Macomb County, Michigan whereby Defendant, General Contractors, were to construct an interceptor sewer system in Washington Township.

"4. That on or about February 13, 1976, Plaintiff and Defendant, General Contractors, entered into a contract by which Plaintiff, subcontractor, agreed to build for Defendant as General Contractors, two lift stations; Plaintiff further agreed as part of said contract to start up the operation of said lift stations as part of the interceptor sewer system being constructed by Defendant, General Contractors, pursuant to Defendant, General Contractors' contract with Washington Township.

"5. That the agreed upon price between Plaintiff and Defendant, General Contractors, for the manufacture, delivery and starting up of the lift stations was $90,000.

"6. That Plaintiff delivered the lift stations to Defendant, General Contractors, on or about November 27, 1977 in accordance with said contract.

"7. That Defendant, General Contractors, accepted the lift stations delivered on the above date, they incorporated the lift stations in the construction job being performed pursuant to their contract with Washington Township.

"8. That Defendant, General Contractors, have continually refused to pay Plaintiff for work performed or any costs incurred with regard thereto even after repeated requests regarding same from the Plaintiff; that such refusal on the part of Defendant, General Contractors, constitutes a breach of their contract with the Plaintiff.

"9. That Plaintiff stands ready, willing and able to perform any remaining work pursuant to its contract [101 MICHAPP 379] with Defendant, General Contractors, but that Defendant, General Contractors' failure and refusal to pay for the goods already delivered and accepted by them places said Defendant, General Contractors, in breach and renders Plaintiff justly apprehensive that any payment will be forthcoming."

Count II was directed at American Casualty's obligation as surety. It is not directly at issue on appeal and will not be referred to again.

Defendants' answer was timely filed on September 5, 1978, and contained the following responses to the above-quoted paragraphs from plaintiff's complaint:

"3. Answering Paragraph 3, Defendants admit same.

"4. Answering Paragraph 4, Defendants admit same.

"5. Answering Paragraph 5, Defendants admit same.

"6. Answering Paragraph 6, Defendants deny that delivery was made in accordance with the contract.

"7. Answering Paragraph 7, Defendants deny same as untrue.

"8. Answering Paragraph 8, Defendants admit the allegation with respect to refusal to pay. Further answering said paragraph 8, Defendants deny that the work was performed, and therefore Defendants have refused to pay for same.

"9. Answering Paragraph 9, Defendants are without sufficient information upon which to base an answer for the reason Plaintiff has refused to perform its contract with Defendants, and leave Plaintiff to its proofs."

Defendants also set forth the following as affirmative defenses:

"1. Defendants incorporate herein their Answers to Counts I and II of Plaintiff's Complaint.

"2. Plaintiff failed to make timely delivery.

"3. Defendant contractors had to spend substantial [101 MICHAPP 380] transportation costs as a result of failure of Plaintiff to make timely delivery.

"4. The products furnished by Plaintiff failed to meet contract specifications.

"5. Plaintiff has refused to complete its obligation under the contract.

"6. Defendants reserve the right to allege such other and further Affirmative Defenses as may come to its knowledge during the pendency of this action."

Subsequently, interrogatories were propounded by plaintiff and answered by defendants. The most pertinent part of plaintiff's questions and defendant's answers reads as follows:

"5. Please give the date on which the lift stations referred to in paragraphs 4 through 7 of Plaintiff's Complaint were delivered to Defendant."

"5. Duplex Jewell Chadwick delivered 12/5/77, shipped 11/30/77. Triplex Hayes-26 mile delivered 10/31/77, shipped 10/28/77."

"6. Please state where such lift stations were delivered to and/or accepted by Defendant, where such lift stations were installed by Defendant, and, if such lift stations were stored for a significant period of time in the interim between delivery and installation, please state where and in what manner such lift stations were stored."

"6. A. Both stations delivered to 30665 Groesbeck, Roseville, MI.

"B. Duplex Station was installed at Jewell and Chadwick, Washington Township, Macomb County, Michigan.

"C. Triplex station was installed at 26 Mile West of Hayes, Washington Township, Macomb County, Michigan.

"D. Both stations stored for approximately 5 months.

"E. Both stations stored at 30665 Groesbeck, Roseville, MI in manner commensurate with manufacturer's instructions."

"11. Please state in detail the manner in which [101 MICHAPP 381] delivery of the lift stations by Plaintiff failed to comply with the contract between Plaintiff and Defendant, if indeed the delivery failed to so comply."

"11. * * * Plaintiffs' Quotations S-12975-Z dated December 9, 1976. Estimated delivery of 20-24 weeks which would have scheduled availability on or about June 15, 1976. Defendant relied on this information when defendant bid the project and defendant relied on promised availability in planning and scheduling dewatering of the project. Nonavailability of stations caused defendant to incur costs not planned on. Pump stations were not ready for delivery until October and December, 1977."

"12. Please state in detail the manner in which the lift stations delivered by Plaintiff failed to meet the specifications of the contract, if indeed the lift stations failed to meet such specifications."

"12. Refer to answer to Paragraph 11 above. Further, pump stations were defective and/or did not meet specifications. Defendant had to hire Detroit Elevator Co. and Lift Station Service Co. and use own men, materials, equipment, etc. to render stations in compliance with contract specifications."

"13. Please state in detail in what manner Plaintiff has refused to complete its obligations under the contract between Plaintiff and Defendant, if indeed Plaintiff has failed to meet such obligations."

"13. Plaintiff failed to provide timely delivery as promised and failed to deliver equipment in accordance with specifications."

A bench trial was held on July 10, 1979. As soon as the case was called, defense counsel moved for a two-week adjournment, "based upon a last minute deposition taken by the Plaintiffs (sic ) on Friday, July 6th". Plaintiff objected to the motion because the transcript of the deposition had been available to defendants the day before, and because defendants had been granted an eight-day adjournment of the deposition from the originally scheduled date. The trial judge denied the motion on the [101 MICHAPP 382] basis that, in the five weeks since the trial date was set, defense counsel had never even intimated that he would not be prepared to proceed on July 10, 1979.

Plaintiff's attorney then made his opening statement, during which he briefly summarized the facts of the case, and then stated in pertinent part as follows:

"(Mr. Turnbull (plaintiff's counsel)): The pleadings on file with the Court, the answers of the complaint, interrogatories and answers thereto, outline the essential elements of this contract. For that reason, my opening statement will be quite brief because of the (fact that the) essential elements of the contract are admitted by the Defendants. I would make reference at this point to paragraph four of the Plaintiff's complaint, which alleges that on or about

"Mr. Doyle (defendants' counsel): May it please the Court, we object to this form of...

To continue reading

Request your trial
1 cases
  • Larion v. City of Detroit
    • United States
    • Court of Appeal of Michigan — District of US
    • May 5, 1986
    ...interrogatories as admissions. Answers to interrogatories are not pleadings. Hydr-O-Matic Pump Division, Weil-McLain Co., Inc. v. G & M Underground Contracting Co., Inc., 101 Mich.App. 376, 301 N.W.2d 26 (1980). In short, the trial court did not err reversibly by precluding defendant city's......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT