Peninsular Const. Co. v. Murray

• Decision Date: 16 March 1962
• Docket Number: No. 27,27
• Citation: 365 Mich. 694,114 N.W.2d 202
• Parties: PENINSULAR CONSTRUCTION COMPANY, a Michigan corporation, Plaintiff and Appellant, v. Walter J. MURRAY, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 202

114 N.W.2d 202

365 Mich. 694

PENINSULAR CONSTRUCTION COMPANY, a Michigan corporation, Plaintiff and Appellant, v. Walter J. MURRAY, Defendant and Appellee.

No. 27.

Supreme Court of Michigan.

March 16, 1962.

Davidow & Davidow, Detroit, for plaintiff and appellant.

William Murray, Detroit, for defendant and appellee Walter J. Murray.

Before the Entire Bench.

KELLY, Justice.

Plaintiff instituted suit in assumpsit seeking $2,405.47 (plus interest) from defendant for work done in repairing defendant's residential sidewalks and garage.

Defendant filed answer, stating 'that at the time said work was performed there was never a contract existing between plaintiff and defendant, that plaintiff corporation through its officers knew that plaintiff corporation never intended to charge defendant for said work and knew that defendant never intended or agreed to pay for said work'; that said work was not performed in a proper or satisfactory manner, and that defendant did not breach any agreement or contract and is not indebted to plaintiff for the work performed.

Plaintiff's reply to defendant's answer listed is prohibited from complying

'There had been a verbal understanding that plaintiff, for and in consideration of legal services rendered by defendant to it, would perform certain work for defendant in payment of said services; that said defendant breached the agreement and insisted upon payment for legal services and obtained a judgment against Samuel J. Brown (president and majority stockholder of plaintiff corporation) for such legal services; that defendant having breached the agreement, plaintiff is entitled to recover for the work performed for said defendant.'

Brown testified that as president and majority stockholder, he was the active directing head of plaintiff corporation, and that said corporation was engaged primarily in highway concrete work; that the kind of work required in repairing defendant's broken concrete and putting a new door on his garage, was not the kind of business plaintiff was engaged in; that defendant, as attorney, incorporated plaintiff company and did other legal work for him and other corporations in which he was interested; that the work was done with no thought that defendant would be called upon to pay for the work and that the memorandum institutions, in anticipation $1,467, which plaintiff sent to defendant in 1953, was sent, not with the thought of collection, but, merely for bookkeeping purpose; that plaintiff made the first request for payment 5 years after the work was completed (November, 1958) and this demand followed a suit filed against him (March, 1957) by defendant and his brother, which suit resulted in a judgment of $4,500; that 'I sued him; the Peninsular Construction Company sued him' because: 'When they demanded the payment. When Mr. Murray sued me individually claiming that I had to pay--that he was working for me and not for the corporation and that he was going to sue me individually, then I felt that the corporation could sue him for the work they did, because if he is suing me as an individual, the corporation is different than me individually'; that he checked over the bill of particulars filed with plaintiff's declaration and the charges made thereon for materials and labor were fair and reasonable.

Defendant testified that he represented Brown for about 3 1/2 years, incorporated about 20 corporations for him during that time, and represented him in a number of lawsuits; that the sidewalks were repaired and certain brick work was done on the garage; that the work was done not upon his request, but upon the suggestion of Brown and the secretary of plaintiff corporation.

At the conclusion of plaintiff's case, which consisted only of the testimony of defendant and Brown, defendant moved for a directed verdict in favor of defendant for the following reasons:

1.--Because the plaintiff failed to sustain the burden of proof in that it proved a mutual reciprocal contract between the plaintiff, Peninsular Construction Company, and defendant, each performing services for the other;

2.--That there was no testimony in the record that defendant breached that agreement with the corporate plaintiff; that he never sued it; that he never asked it for any money; that he never received any money; that he performed substantial legal services for it;

3.--That if the $4,500 judgment against Brown, obtained in Judge Rashid's court, did not include work done for the plaintiff, there could be no breach;

4.--That if...