Janiszewski v. Behrmann, 8

• Decision Date: 01 March 1956
• Docket Number: No. 8,8
• Citation: 75 N.W.2d 77,345 Mich. 8
• Parties: Arthur JANISZEWSKI, in his individual capacity and d/b/a Art's Sausage & Meat Shop, Plaintiff-Appellant, v. Charles BEHRMANN, in his individual capacity and as Bailiff of the City of Detroit, Wayne county, Michigan, Eli Friedman and Sumner Tallman, both jointly and severally, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 77

75 N.W.2d 77

345 Mich. 8

Arthur JANISZEWSKI, in his individual capacity and d/b/a Art's Sausage & Meat Shop, Plaintiff-Appellant, v. Charles BEHRMANN, in his individual capacity and as Bailiff of the City of Detroit, Wayne county, Michigan Eli Friedman and Sumner Tallman, both jointly and severally Defendants-Appellees.

No. 8.

Supreme Court of Michigan.

March 1, 1956.

Harry J. Lippman, Detroit, Benedict Segesta, Detroit, of counsel, for plaintiff and appellant.

Melvin M. Alter, Detroit, for defendant and appellee Charles Behrmann.

Shapero & Shapero, Detroit, for defendant and appellee Eli Friedman.

Irving Dworkin, Detroit, for defendant and appellee Sumner Tallman.

Before the Entire Bench.

CARR, Justice.

This action was brought in circuit court on June 30, 1954, recovery being sought on the basis of conversion of personal property more than three years previously. The question presented is whether the prosecution of said action was barred by the statute of limitations relating to actions to recover damages for injury to person or property. By the provisions of said statute, C.L.S.1954, § 609.13, subdivision 2, Stat.Ann.1953 Cum.Supp. § 27.605, an action of this character must be brought within three years from the time it accrues. In considering the issue presented, well-pleaded material facts set forth in plaintiff's declaration must be accepted as true.

Plaintiff's amended declaration contains three counts. The first is in trespass on the case and alleges that on the 28th of March, 1951, defendant Tallamn obtained a judgment against plaintiff in the common pleas court of the city of Detroit in the sum of $1,500 and costs. Thereafter a writ of execution was issued on the judgment and levied on certain personal property in plaintiff's store or meat shop. It is further averred that a purported sale of the property seized was held, but not in accordance with statutory requirements. In substance, plaintiff asserts in his declaration that defendants wrongfully converted the property taken under the writ. The right of action is predicated on such conversion. There is no showing that the judgment was not valid, or that the writ of execution was not properly issued. Plaintiff asserts in the first count his right to recover damages, including those suffered because of incidental injury to his business resulting from the conversion of said property.

The second count of the declaration repeats the averments as to the tortious conduct of the defendants, and likewise asserts the right to recover damages because of the losses sustained by plaintiff. The caption of the count indicates that it was intended to be in trespass on the case upon promises, and the claim is made therein that following the conversion a sale was made for the sum of $600. However, the count is not based on any claim of right to recover that sum, but on the theory of damages sustained as a result of the alleged tort.

Count three of the amended declaration refers to the 'several premises' set forth in the preceding count as its basis, and alleges indebtedness on the part of defendants to the plaintiff in the sum of $50,000. Incorporated therein are five common counts in assumpsit, namely, for work done by plaintiff for defendants, for money loaned by plaintiff to them, for money paid out by plaintiff for the use of defendants, for money had and received, and on account stated. A further claim is made indicating that plaintiff's declaration was based especially on fraud, deceit and conspiracy as in the second count of the declaration set forth, and damages in the same sum as mentioned in the first and second counts are claimed. It clearly appears from the averments of the declaration that recovery was sought, under each count, on the basis of the tortious conversion of plaintiff's property and not because of any contractual relation, express or implied.

Annexed to the declaration is a bill of particulars setting forth the items, four in number, for the recovery of which the action was brought. The first three items assert the right of recovery because of specific personal property wrongfully converted by the defendants. A fourth item refers to the loss of profits in his business suffered by plaintiff by reason of the tortious conduct charged. The bill of particulars emphasizes the fact that plaintiff's alleged cause of action was based on the conversion of his property and the incidental damage resulting therefrom. The incorporation of the common counts in the declaration, together with the reference to the averments of tortious conduct as the basis thereof, added nothing to the special count. The rule is well-settled in Michigan that a bill of particulars may limit the scope of permissible recovery under the declaration, but may not enlarge it. Applebaum v. Goldman, 155 Mich. 369, 121 N.W. 288; Cook v. Dade, 191 Mich. 561, 158 N.W. 175.

Motions by defendants to dismiss the declaration were denied, and thereupon answers were filed denying the material averments of plaintiff's alleged cause of action. On leave granted by the court, said answers were amended by adding thereto pleas of the statute of limitations, above cited. This was followed by motions to dismiss based thereon, and the trial court, concluding that the action was one to recover damages for injury to property, granted the motions. Plaintiff had appealed.

On behalf of plaintiff it is urged that his right to prosecute his cause of action was not barred by the statute for the reason that material facts constituting the basis of said right were wrongfully and fraudulently concealed from him by defendants. The facts well-pleaded by plaintiff do not support such claim. Obviously plaintiff knew what had occurred, and if uncertain as to any of the details of defendants' wrongful conduct he was placed on inquiry with reference thereto. Defendants owed him no duty to advise him as to his legal rights. The statute of limitations was not tolled by fraudulent concealment of the cause of action. We are in accord with the conclusion of the trial judge that the statute barred the prosecution of the cause of action set forth in the declaration. As before stated, plaintiff's declaration, read in conjunction with the bill of particulars, must be construed as based on tortious conversion of personal property.

The Judicature Act of the State ¹, applicable to civil actions, provides in chapter 11, § 1, thereof, C.L.1948, § 611.1, Stat.Ann. § 27.651, that in certain cases, including the conversion of personal property into money, the plaintiff may sue either in assumpsit or in trespass on the case. In accordance therewith the aggrieved party, as was the situation prior to the adoption of the Judicature Act in 1915, has an election to sue in tort to recover the damages sustained by him as a result of the wrongful conversion of his property or, if such property has been sold by the wrongdoer, he may waive his right to proceed in trespass on the case and declare in assumpsit. In such event he is deemed to have elected to regard the tort-feasor as having made such sale for the owner's use and benefit and is entitled to recover the amount received. By following such procedure the one guilty of the conversion may be prevented from profiting by his transaction as a result of a sale for an amount in excess of the actual value. In the instant case plaintiff has expressly declared in tort and sought recovery for the damages sustained by him. By so doing he elected his remedy In Rutan v. Straehly, 289 Mich. 341, 348, 286 N.W. 639, 641, in commenting on the statute, it was said:

'Plaintiff did not waive the tort, therefore her counts in assumpsit became surplusage.'

In support of such statement the prior case of Kirker v. Larson, 254 Mich. 648, 236 N.W. 896, was cited.

As before indicated, plaintiff's declaration, read in the light of the bill of particulars, is based on the alleged tortious conversion of personal property by defendants. No contractual relation between the parties, either express or implied, is asserted. I cannot agree with the conclusion or Mr. Justice SMITH that the case should be remanded for trial on the theory of a contract implied by law, that is, on the basis of quasi-contract. Such conclusion apparently rests on the theory that when defendants converted plaintiff's property after it had been seized under the writ of execution the law implied a promise on their part to return it or pay its value, and that the right to maintain an action in assumpsit based either on a special count or on an appropriate common count is not related, as a matter of law, to the tortious conversion. That the value of property wrongfully converted may be recovered in an action of trespass on the case, if seasonably brought, is not open to question. The remedy in tort is more favorable to the aggrieved party in some respects than is the asserted right of action in assumpsit, although as a general rule the measure of damages is the value at time of conversion. Hudson v. Enichen, 308 Mich. 79, 13 N.W.2d 215, and prior decisions there cited.

Without discussing the matter at length, it must be said that the plaintiff in the instant case was not entitled to proceed on the quasi-contract theory to recover the value of the property, nor may he now do so notwithstanding that his action in tort is barred by the statute of limitations. As before emphasized, plaintiff's cause of action, as set out in his pleading, rests on the claim of a tortious conversion and the right to recover damages therefor. He sought to pursue his remedy in tort, claiming that the running of the applicable statute of limitations had been tolled by fraudulent concealment. Until barred by the statute he had an adequate remedy in tort for the alleged injury sustained by him. His declaration was framed on that theory.

Furthermore, a right of action for the value of the property on the theory of quasi-contract in cases of...