Mineau v. Boisclair, 47.

• Decision Date: 12 November 1948
• Docket Number: No. 47.,47.
• Citation: 323 Mich. 64,34 N.W.2d 556
• Parties: MINEAU v. BOISCLAIR.
• Court: Michigan Supreme Court

323 Mich. 64

34 N.W.2d 556

MINEAU

v.BOISCLAIR.

No. 47.

Supreme Court of Michigan.

Nov. 12, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Delta County; Frank A. Bell, Judge.

Suit by Exilda Mineau, administratrix of the estate of Mary Beaudry, deceased, against Matcherel Boisclair to recover money and property allegedly belonging to the deceased's estate. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Before the Entire Bench.

Yelland & Yelland, of Escanaba, for appellant.

Alger W. Strom, of Escanaba, for appellee.

CARR, Justice.

Plaintiff herein, as administratrix of the estate of Mary Beaudry, deceased, brought suit in circuit court to recover money and property claimed to belong to the estate. The first count of the declaration alleged in substance that decedent died on June 12, 1946, that some weeks prior thereto she received from the sale of property that she owned a check in the sum of $1096.35, that such check was deposited by defendant in a bank in the joint names of herself and Mary Beaudry, and that on June 17, 1946, defendant withdrew the money from the bank. Refusal to account therefor to plaintiff was also alleged. Said count also set forth that defendant had in her possession a fur coat and a diamond ring belonging to the estate which she refused to deliver to plaintiff. The second count of the declaration was based on the common count in assumpsit for money had and received. To it was attached a bill of particulars reciting that defendant had in her possession the sum $1096.35 belonging to the estate, which she was withholding from the possession of the administratrix. Defendant in her answer to the declaration denied the material facts alleged by plaintiff as the basis of the cause of action on which recovery was sought, and pleaded that the joint account was established with the understanding that the defendant, if she survived Miss Beaudry, should become the absolute owner of the fund.

At the outset of the trial the fur coat and the ring referred to in the pleadings were by mutual agreement turned over to the plaintiff. Thereupon the trial court indicated that the case would proceed and be submitted to the jury on the second count. The record does not indicate that the first count was formally stricken or that it was withdrawn.

The proofs offered on behalf of plaintiff indicated that after the receipt of the check in question Miss Beaudry discussed with plaintiff the matter of the disposition of the money and was advised that it would be well to deposit it in a joint account in the names of Miss Beaudry and defendant so that the latter, with whom Miss Beaudry was then living, might make withdrawals from time to time. It is undisputed that Miss Beaudry was at that time quite ill and unable to handle her affairs without assistance. Subsequently the check, endorsed by Miss Beaudry and the defendant, was taken by the latter to the bank where the sum of $800 was deposited in the joint account. The balance was paid in cash to defendant, and it is undisputed that she turned the money over to Miss Beaudry. The record does not disclose the final disposition of such sum. Defendant admitted that she withdrew the deposit from the bank after Miss Beaudry's death.

At the conclusion of plaintiff's case defendant moved for a directed verdict, which motion was denied. Thereupon she offered testimony in support of her claims as set forth in her answer to the declaration. She testified in substance, apparently without objection, that there was an agreement and understanding between herself and Miss Beaudry that she was to become the owner of the money in the joint account after Miss Beaudry's death. In such claim defendant was corroborated by the testimony of her daughter. The motion for a directed verdict was renewed by defendant at the conclusion of the proofs, and was again denied. The question as to the ownership of the money in dispute was submitted to the jury, and a verdict was returned for plaintiff in the sum of $1096.35. Defendant's subsequent motion for a new trial was denied on condition that plaintiff remit the amount of the verdict over and above $800, the sum actually deposited in the joint account. Plaintiff consented thereto and judgment was rendered accordingly. Defendanthas appealed, claiming that under the pleadings and the proofs a verdict should have been directed in her favor, and that, if it is determined that such claim is not well founded, errors in the submission of the case to the jury were of such character as to necessitate the granting of a new trial.

On behalf of defendant it is urged that the second count of the declaration was insufficient to permit recovery. Reliance is placed on Court Rule 19, § 1, which requires that ‘The declaration shall contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend.’ Apparently it is defendant's theory that the plaintiff was seeking to recover on the check, part of the proceeds of which were deposited to create the joint account. The bill of particulars, however, clearly indicates that plaintiff brought suit on the theory that defendant had in her possession money belonging to the estate and was under the legal obligation to pay such money to the plaintiff as administratrix. The case was tried and submitted to the jury on such theory. Defendant is not in position to claim that she was not sufficiently informed by the allegations of the declaration as to the nature of plaintiff's cause of action. Plaintiff was not required to bring suit in equity for an accounting. She was entitled to bring action to recover money claimed to be due the estate by suit at law based on the common count for money had and received. Harty v. Teagan, 150 Mich. 75, 113 N.W. 594. See also Thurber v. Aldrich, 167 Mich. 658,133 N.W. 620;DeCroupet v. Frank, 212 Mich. 465, 180 N.W. 363.

Defendant further contends that the evidence on the trial was not sufficient to justify submission of the case to the jury or to support the verdict rendered. In support of her contention defendant relies on 3 Comp.Laws 1929, § 12063, as amended by Act No. 286, Pub.Acts 1937, Comp.Laws Supp.1940, § 12063, Stat.Ann.1943 Rev. § 23.303. Insofar as material here, said section reads as follows:

‘When a deposit shall be made, in any bank by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall...