Irwin v. Via

• Decision Date: 22 February 1966
• Docket Number: No. 1,No. 464,464,1
• Citation: 139 N.W.2d 893,2 Mich.App. 375
• Parties: Donald L. IRWIN and Shirley E. Irwin, Plaintiffs-Appellees, v. Arlo VIA, Jr., and Margaret E. Via, Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan — District of US

Page 893

139 N.W.2d 893

2 Mich.App. 375

Donald L. IRWIN and Shirley E. Irwin, Plaintiffs-Appellees, v. Arlo VIA, Jr., and Margaret E. Via, Defendants-Appellants.

Cal. No. 464.

Court of Appeals of Michigan, Division No. 1.

Feb. 22, 1966.

Douglas W. Craig, Craig & Heidt, Wayne, for appellants.

Ben W. Boutell, Detroit, for appellees.

Before LESINSKI, C. J., and GILLIS and QUINN, JJ.

GILLIS, Judge.

Plaintiffs brought an assumpsit action in the common pleas court for the city of Detroit alleging money due from the defendants on an alleged contract and promissory note. Plaintiffs, on or about June 25, 1962, sold the equity in their home to the defendants. At the same time the parties executed an agreement under which defendants agreed to assume and pay an obligation owed by plaintiffs to the Manufacturers National Bank of Detroit in the amount of $712.46 and another obligation of the plaintiffs owed to the National Bank of Detroit in the amount of $945.57, and in addition thereto the defendants executed a promissory note for $100 payable to the order of the plaintiffs, said note payable on or before September 25, 1962.

The record discloses that the indebtedness to the Manufacturers National Bank of Detroit was originally incurred to cover landscaping, but is silent as to the circumstances surrounding the execution of the promissory note to the National Bank of Detroit.

Plaintiffs commenced suit alleging breach of the contract to pay the two bank indebtednesses and the failure to pay the promissory note. Defendants answered admitting the promissory note was due and payable, admitting they had failed to make the payments to the two banks, but contending the agreement to pay the banks was obtained by fraud and was without consideration. Defendants filed a counterclaim alleging that plaintiffs had failed to pay the required federal documentary tax in the amount of $14.85.

Trial commenced before the court without a jury and at the conclusion of plaintiffs' proofs and after the plaintiffs had rested, defense counsel moved for a directed verdict contending that there was no evidence of consideration shown for the alleged contracts covering the Manufacturers National Bank and National Bank of Detroit indebtednesses. After making a finding that consideration for the execution of the agreement to pay the obigations due to the banks was not proven, the court dismissed plaintiffs' case without prejudice. Defense counsel then stated:

'We will let our case go too, your Honor. We have a cross-claim but we will let it go without prejudice too, your Honor.'

The court then dismissed the counterclaim without prejudice. Defendants commenced this appeal alleging, as the sole ground of reversible error, that the court should have dismissed the case with prejudice.

The procedure followed in the trial is puzzling to this Court.

First, the proper motion to be made by the defendants at the close of the plaintiffs' case was a motion to dismiss pursuant to GCR 1963, 504.2, and not a motion for a directed verdict which is applicable in jury trials and has a different effect. See GCR 1963, 515. ¹

Second, plaintiffs made no motion to reopen proofs in order to establish, if possible, the element of consideration. In view of the court's ultimate ruling dismissing the cases without prejudice, and expressly indicating the plaintiffs could start their case anew, undoubtedly a motion by plaintiff to reopen would have been granted. See Bonner v. Ames (1959), 356 Mich. 537, 97 N.W.2d 87.

Third, the defendants' counsel did not object to the court's ruling the suggested the additional ruling by the court dismissing defendants' counterclaim without prejudice.

It would appear that...