Lovette v. Essig

• Decision Date: 01 July 1892
• Court: Michigan Supreme Court
• Parties: LOVETTE v. ESSIG.

52 N.W. 750

92 Mich. 461

LOVETTE v. ESSIG.

Supreme Court of Michigan

July 1, 1892

Error to circuit court, Cass county; THOMAS O'HARA, Judge.

Action in justice court by John J. Lovette against Frank H. Essig to recover damages on a contract to rent a house. From a judgment of the circuit court on certiorari by defendant reversing a judgment dismissing the action plaintiff brings error. Reversed.

Freeman J. Atwell, for appellant.

Coy W. Hendryx, for appellee.

MORSE C.J.

The plaintiff sued the defendant in justice court in "a plea of trespass on the case, to his damage $300 or under." On the return day the parties appeared, and the plaintiff declared against the defendant orally "in a plea of trespass on the case upon the common counts, and especially on a certain contract to rent a house, etc., (see Exhibit A,) and claims damages one hundred dollars." The above is taken from the justice's return: Exhibit A is as follows "Exhibit A. Specially. On a certain contract or agreement made and executed on, to wit, the ----- day of -----, 1889, wherein and whereby said plaintiff agreed to execute a lease to, and said defendant to accept a lease on to wit, the 7th day of August, A. D. 1890, said lease to be executed for one year, at the annual rental of one hundred and twenty dollars, payable in monthly installments of ten dollars each, which said lease was ready and willing to be executed by said plaintiff, and which said lease said defendant refused to accept, and still does refuse, to plaintiff's damage one hundred dollars." The defendant pleaded the general issue, and demanded the plaintiff's bill of particulars. The court ordered the bill of particulars to be filed within 10 days, and by agreement of parties the cause was adjourned 14 days. On the adjourned day the plaintiff refused to file a bill of particulars. The defendant moved the court to strike out the common counts, and dismiss the case. The court granted the first part of the motion, but refused to dismiss. When the case came on for trial defendant objected to any evidence on the part of the plaintiff, for the reason that there was no issue. The objection was sustained by the court, and the case dismissed. Upon certiorari to the circuit, it was ordered that the judgment of the justice be reversed, and that the plaintiff recover his costs against the defendant. The circuit court was in error. The demand for a bill of particulars applied to...