Kaunitz v. Wheeler

• Decision Date: 01 December 1955
• Docket Number: No. 80,80
• Citation: 344 Mich. 181,73 N.W.2d 263
• Parties: Lester R. KAUNITZ, d/b/a K & K Engineering Company, Plaintiff and Appellee, v. J. Del WHEELER and R. L. Wheeler, copartners d/b/a Wheeler Sales Engineering, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 263

73 N.W.2d 263

344 Mich. 181

Lester R. KAUNITZ, d/b/a K & K Engineering Company Plaintiff and Appellee, v. J. Del WHEELER and R. L. Wheeler, copartners d/b/a Wheeler Sales Engineering, Defendants and Appellants.

No. 80.

Supreme Court of Michigan.

Dec. 1, 1955.

Hugh K. Davidson and J. Connor Austin, Detroit, for defendants and appellants.

B. J. Tally, Bay City, Thomas Giles Kavanagh, Jr., Detroit, for plaintiff and appellee.

Before the Entire Bench.

BOYLES, Justice.

Plaintiff brought suit in assumpsit against the defendants, filing a declaration on the common counts and adding a count for an account stated. That part of the declartion essential to decision herein reads as follows:

'2. That defendants, on the 18th day of December, 1952, were indebted to plaintiff in the sum of $29,427.10, for money theretofore had and received by defendants for the use of plaintiff, as shown by the statement of account attached hereto and marked exhibit '1'.

* * *

* * * '8. That on December 22, 1952, plaintiff submitted a statement of account to defendants, in the amount of $29,427.10, and that defendants acknowledged in writing on March 27, 1953, said indebtedness to plaintiff, and that thereupon an account stated resulted from the dealings had between them.

'9. That thereupon, and in consideration thereof, defendants promised plaintiff payment of the aforesaid money.

'10. That, though often requested by plaintiff so to do, defendants have not paid any of said sums, to plaintiff's damage in the sum of $29,427.10.

'Wherefore, plaintiff prays judgment in the sum of $29,427.10 together with interest and costs of this action.'

The statement of account attached to the declaration, referred to in count 2 as exhibit 1, showed the number of 'toss-board stand assembly units,' contracted for by the defendants, which had been delivered, others completed or in process but not delivered, the material on hand, the money received and balance claimed due, $29,427.10, as follows:

                "Units Delivered 1500 at 75 cents ..................... $ 1125.00
                                11,500 at 90 cents ....................  10395.00
                "Units Completed
                "On Hand 15,469 .......................................  13922.10
                "Units in Process 8,000, 75% Completed .................. 5600.00
                "Material on Hand $4635.00 .............................. 4635.00
                                                                        ---------
                                                                 Total   35677.10
                "Money Received ......................... $ 4250.00
                "Money Due to date ......................  31427.10
                "Dec. 22,1952 ...........................   2000.00
                "Balance Due ............................ $29,427.10"
                

Issue was joined by the defendants pleading a general denial. Thereupon the plaintiff filed a motion for summary judgment, based on the pleadings and on affidavits filed by the plaintiff stating, in substance, that the plaintiff had entered into a contract to produce and deliver to the defendants 50,000 'toss-board stand assembly units,' had purchashed and processed specially-cut material for making the units, had delivered 13,000 units to the defendants, had either completed or partially processed the remaining units, had been paid $6,250, that the defendants had admitted the balance due as claimed by the plaintiff in his declaration as an 'account stated,' $29,427.10. Therefore the plaintiff moved for a summary judgment for that amount.

The defendants opposed the motion, filing affidavits claiming that plaintiff's motion for a summary judgment did not purport to be on an account stated, that it and the affidavit attached to it contained questions of fact which could be determined only by a trial of the issues, stating circumstances showing that the plaintiff had agreed to withhold further deliveries of units until further orders, alleging in detail facts tending to show that the plaintiff had not complied with the alleged contract in several particulars in the manufacture of the 'units,' and claim that the defendants had already paid plaintiff more than the amount owed him.

The court granted plaintiff's motion and entered a summary judgment of $29,457.10 ¹ plus $1,185.23 interest, and costs, for the plaintiff, from which the defendants appeal.

In granting a summary judgment the court in a lengthy opinion analyzed and discussed the facts alleged by the parties in their several affidavits, and referred to copies of letters (which apparently were not received as exhibits) possibly having some bearing on the claims of the parties.

Defendants urge for reversal that the 'pleadings and affidavits did not establish an account stated,' and, further, that the record shows questions of fact which bar a summary judgment.

Plaintiff's claim of an 'account stated' is based on a statement made in a letter sent to plaintiff by the defendants before this suit was started, in which it was stated by defendants:

'We hereby acknowledge our indebtedness to you and request your consideration for the time being.'

Conceding, arguendo, that plaintiff's declaration is based on an 'account stated' (which defendants have put in issue by their general denial), we conclude that the above statement is not sufficient to amount to or create an account stated, or an admission by the defendants that they owed plaintiff $29,427.10.

'The conversion of an open account into...