Mich. Bean Co. v. Burrell Eng'g & Constr. Co.

• Decision Date: 07 September 1943
• Docket Number: No. 23.,23.
• Citation: 306 Mich. 420,11 N.W.2d 12
• Court: Michigan Supreme Court
• Parties: MICHIGAN BEAN CO. v. BURRELL ENGINEERING & CONSTRUCTION CO. et al.

306 Mich. 420

11 N.W.2d 12

MICHIGAN BEAN CO.

v.BURRELL ENGINEERING & CONSTRUCTION CO. et al.

No. 23.

Supreme Court of Michigan.

Sept. 7, 1943.

Action by Michigan Bean Company against Burrell Engineering & Construction Company and others to remove cloud on title and for injunction, wherein defendant named asserted a countercharge for balance due on construction contract. The court dismissed the bill as to all defendants except the Burrell Engineering & Construction Company and from the decree awarding plaintiff money damages as against the defendant named, such defendant appeals.

Reversed with directions to dismiss complaint without prejudice to right to transfer to the law side of the court.

Appeal from Circuit Court, Saginaw County, in Chancery; James E. O'Neill, Judge.

Before the Entire Bench.

John T. Spence, of Saginaw, and Harry J. Myerson, of Chicago, Ill. (Theodore E. Rein, of Chicago, Ill., of counsel), for appellant Burrell Engineering & Construction Co.

Weadock and Weadock, of Saginaw, for appellee.

BUTZEL, Justice.

The Michigan Bean Company filed a bill, entitled a ‘Bill to remove cloud on title and for injunction,’ against Burrell Engineering & Construction Company, an Illinois corporation (referred to herein as ‘Burrell’) and four materialmen, three of whom it is alleged had filed claims for liens against plaintiff's property. The litigation arose out of a contract entered into by Burrell to erect for plaintiff an elevator, warehouse and office building which were constructed on plaintiff's property at Merrill, Michigan. Plaintiff claimed that the price agreed upon was a fixed amount, while Burrell contends it was to be paid cost plus 15 per cent. Plaintiff alleged that Burrell had not fully completed the work provided for in the contract, that some of it was defective, that it had overpaid Burrell, and that it had suffered a heavy loss through Burrell's delay in completion of the contract, for which plaintiff asked that Burrell pay a large sum by way of damages. Plaintiff made other allegations in its bill which, if proven, might properly invoke equitable relief. It contended that the four materialmen joined as defendants had conspired with Burrell to file liens or bring suits against plaintiff, that the liens already filed had created a cloud on the title to plaintiff's recovery, that the suits were vexatious, that the bill was also for the purpose of avoiding a multiplicity of suits. Plaintiff in its brief summarizes its claims in the statement that the bill was ‘to remove clouds on title, to determine invalidity of liens filed, to specifically enforce the Burrell obligation to write fixed price contract as agreed, to restrain fraudulent claims of baseless cost-plus contract, to avoid multiplicity of suits and for injunction against maintenance of materialmen's baseless, conspirational suits at law and Burrell's fraudulent suits in foreign jurisdiction.’ The bill, however, does not allege that any such suits were brought in foreign jurisdictions by Burrell. Plaintiff asked in its bill that Burrell and the other defendants be restrained from beginning any actions at law, and upon the filing of the bill, a temporary injunction to that effect was issued.

Burrell made an effort to remove the case to the United States District Court, and before the suit was remanded to the State court, it filed its answer specifically denying plaintiff's charges and also asserting a countercharge (as provided by the United States court rules), for which it asked for a judgment in its favor of $9,952.41. This answer as stated by counsel on the oral argument, was recognized as defendant's answer when all of the pleadings in the United States District Court were subsequently filed in the Saginaw circuit court in chancery.

Plaintiff's claims for equitable relief, as set forth in the bill of complaint, were based on the breach of plaintiff's version of the contract and the suits and actions of the materialmen separately and also in conjunction with Burrell. The bill was not for specific performance, for the contract already had been performed even though, as claimed by plaintiff, the work was improperly done. Upon the final decree, the judge dismissed the bill of complaint as to all defendants except Burrell. This left a plain action at law arising from a dispute over a building contract between plaintiff and Burrell. In the final decree the court gave no injunctive or equitable relief. The dismissal of the bill as to the other defendants with the exception of Burrell stripped the case of all grounds for equitable relief. The decree awarded money damages to plaintiff against Burrell for failure to complete the contract, defective workmanship, delay in performance, and overpayment. The judge filed but a short memorandum opinion and entered a decree. In granting plaintiff a money decree, he necessarily was called upon to determine whether the contract was for a fixed amount, as plaintiff contended, or for cost plus a percentage, as claimed by defendant. This, however, was purely a question of fact that arises so frequently in an action at law. It was not a question that called for the exercise of...