Multiplex Concrete Mach. Co. v. Saxer

• Decision Date: 02 January 1945
• Docket Number: No. 23.,23.
• Citation: Multiplex Concrete Mach. Co. v. Saxer, 310 Mich. 243, 17 N.W.2d 169 (Mich. 1945)
• Parties: MULTIPLEX CONCRETE MACHINERY CO. v. SAXER.
• Court: Michigan Supreme Court

310 Mich. 243

17 N.W.2d 169

MULTIPLEX CONCRETE MACHINERY CO.

v.SAXER.

No. 23.

Supreme Court of Michigan.

Jan. 2, 1945.

Appeal from Circuit Court, Oakland County; Frank L. Doty, judge.

Replevin action by Multiplex Concrete Machinery Company against Joseph Saxer to repossess a concrete block making machine, wherein the defendant filed a cross declaration and claimed set-off and recoupment. From an order denying the right to have the case transferred to the equity side of the court, the defendant appeals.

Order set aside and case remanded with directions.

REID and SHARPE, JJ., dissenting.

Before the Entire Bench.

Joseph B. Beckenstein and Joseph J. Beck, both of Detroit, for appellant.

Thomas E. H. Black, of Detroit, for appellee.

BOYLES, Justice.

I do not agree that the order denying the right to have the case transferred to the equity side of the court should be affirmed. Nor can I agree that the defendant has an adequate remedy at law, or that the defendant could offset or recoup damages in the replevin suit. The case should be remanded for entry of an order giving the equity court jurisdiction of the case.

Plaintiff's declaration is in replevin, to repossess personal property under a chattel mortgage on which defendant had defaulted in instalment payments. The declaration claims that the entire unpaid balance of instalments on the note and mortgage is in default by virtue of an acceleration clause in the chattel mortgage; and that under this right to elect that the entire amount is due through the acceleration clause ‘by virtue of the said exhibits 1 and 2 (the chattel mortgage and instalment note) and in addition to the return of said machinery and equipment to plaintiff, plaintiff has been damaged in the further and additional sum of not to exceed $3,500.00.’ In concluding its declaration plaintiff claims judgment for return of the property, or the value thereof, ‘and for the further and additional sum of damages of not to exceed $3,500.00 and its costs in this suit.’ In the absence of any express claim by plaintiff for damages arising out of the detention, it may be inferred that plaintiff is seeking judgment on account of the accelerated unpaid balance of the instalments. This cannot be accomplished in the replevin action. Replevin is a possessory action, and plaintiff's damages in a replevin suit are limited to damages for the unlawful taking or unlawful detention, or both. 3 Comp.Laws 1929, § 14838 (Stat.Ann. § 27.1836). Such damages may include compensation for loss of use of the property and any actual injury to the property (McGuire v. Galligan, 53 Mich. 453, 19 N.W. 142;Aber v. Bratton, 60 Mich. 357, 27 N.W. 564), and for depreciation in value (Riley v. Littlefield, 84 Mich. 22, 47 N.W. 576). But plaintiff in replevin cannot have judgment for the return of the property, or for the value thereof, and at the same time use as its measure of damages for the detention thereof the amount of the unpaid balance on the note and chattel mortgage on which plaintiff's right to possession of the property is founded. A plaintiff in replevin cannot recover damages except such as arise out of the unlawful detention, for use, injury to or depreciation in value of the property in question. Nor can a plaintiff join in an action in replevin a claim in trespass on the case for damages foreign to such as arise out of unlawful taking or unlawful detention, or in assumpsit for the balance due on a note. E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260, 107 N.W. 1073. In Brewster Loud Lumber Co. v. General Builders' Supply Co., 233 Mich. 633, 208 N.W. 28, 29, this court said:

‘The principal question involved is whether, under the circumstances of the case, the court erred in permitting the plaintiff to amend his declaration in the replevin suit by adding a count in assumpsit. * * * The purpose of the action in replevin is to recover the possession of goods unlawfully detained. * * * In the instant case the plaintiff had no cause of action in replevin. The goods were not unlawfully detained by the defendant. There could be no unlawful conversion, and therefore the plaintiff could not recover the value of any part of the goods in that action. The failure of the replevin suit has taken any question of the unlawful conversion out of the case. So that, under the circumstances of this case, the plaintiff could not add a count for conversion to his declaration in the replevin suit and recoverthe value of the goods under it; and, if he could not do that, he certainly could not add a count in assumpsit.

‘There is no provision in the Judicature Act * * * or in any rules adopted by this court, that have changed the practice as to the joinder of counts in replevin actions. Our attention is called to section 432, p. 163, c. 8 of the Judicature Act * * *, the applicable part of which reads as follows:

“The plaintiff may join in one action, at law or in equity, as many causes of action as he may have against the defendant.' [3 Comp.Laws 1915, § 12309].

‘Causes of action are understood to be those ‘which are generally recognized and often defined as the fact or combination of facts giving rise to or entitling a party to sustain an action.’ Otto v. Village of Highland Park, 204 Mich. 74, 169 N.W. 904. With this definition in mind, it will readily appear that this section of the statute does not refer to the joinder of actions, or to counts applicable to different actions. It is limited by its language to the joinder of causes of action in one action. It does not mean that one may join a cause of action in assumpsit with a cause of action in replevin; nor does section 4 of circuit court rule 22 permit that practice.'

The defendant, by cross-declaration, sought to recoup unliquidated damages in excess of $12,000 arising out of a claimed breach of warranty of fitness of the machine for certain purposes, and for injury to or loss of defendant's business. Plaintiff moved to dismiss the cross-declaration on the ground that set-off or recoupment cannot be allowed the defendant in an action in replevin. This court has so held. Dearing Water Tube Boiler Co. v. Thompson, 156 Mich. 365, 120 N.W. 801, 24 L.R.A.N.S., 748;Rubin v. Gallagher, 294 Mich. 124, 292 N.W. 584. While set-off cannot be shown to reduce the balance claimed to be due on the note, an exception exists where defendant shows that the note has been paid in full. Tropical Paint & Oil Co. v. Hall, 225 Mich. 293, 196 N.W. 354. By stipulation the defendant's cross-declaration and claim of set-off or recoupment was dismissed by court order, and the defendant filed a motion to transfer the case to the equity side of the court, which motion was denied. This order denying the transfer is now under consideration on this appeal.

The grounds urged by defendant for the transfer of the case to the equity court are that his defenses are of an equitable nature which cannot be interposed in the replevin suit, that defendant does not have an adequate remedy at law. Also, as additional ground for equitable jurisdiction, the defendant claims that while the replevin suit was pending the plaintiff foreclosed the chattel mortgage and removed the property to Ohio beyond the jurisdiction of the court, which action defendant claims was void, that the sale should be set aside and the property returned to the jurisdiction of the court.

We are in agreement with defendant's contention that defendant does not have an adequate remedy at law in the replevin action, by way of set-off or recoupment of unliquidated damages not arising out of the unlawful detention.

As early as 1890 this court held: ‘Replevin is a statutory remedy in this state, and the defendant can only have such judgment as the statute authorizes the court to render.’ Bateman v. Blake, 81 Mich. 227, 232, 45 N.W. 831, 833.

Where the defendant in replevin prevails, the statute allows judgment for the defendant of return of the property, or the value of the property replevied and damages sustained by him by reason of the detention by plaintiff (3 Comp.Laws 1929, §§ 14843, 14844 [Stat.Ann. §§ 27.1841, 27.1842]), or if the property was not replevied and delivered to the plaintiff, a defendant who prevails in the suit can take judgment for costs only. 3 Comp.Laws 1929, § 14846 (Stat.Ann. § 27.1844).

In Eldred v. Woolaver, 46 Mich. 241, 9 N.W. 266, the defendant attempted to defeat an action of replevin by claiming damages for injury to a yoke of oxen, although there had been no agreement as to the amount of the damage or that the plaintiff in replevin had agreed to pay for the damage. Justice Cooley, writing for the court in holding that the defense was not available in a replevin action, said: ‘Without such an agreement he (the plaintiff) could not be liable for the use, and he could only be held for any damage to them in some form of action in tort.’

In Theatre Equipment Acceptance Corporation v. Betman, 266 Mich. 22, 253 N.W. 201, the defendant in replevin appealed from a judgment in her favor for damages for unlawful replevin of property, claimingthe damages allowed her were insufficient. She sought as damages the value of other property affected by the unlawful replevin, the value of the property to her as a going business, earnings, cost to reinstall the equipment, and interest on the value of the replevied property. In effect, her claim was for unliquidated damages. The court in denying such claims said (266 Mich. at page 26, 253 N.W. at page 202):

‘Defendant in effect seeks damages for a conversion of her entire business.

‘Special damages must be such as are the immediate consequence of the unlawful taking.’ Woods v. Gaar, Scott & Co., 93 Mich. 143, 53 N.W. 14.'

The situation, then, in which these parties now find themselves is as follows:

Plaintiff cannot recover, in the replevin case, the damages apparently sought by its declaration; the defendant, on the law side of the court, cannot offset or recoup his claimed damages for...