Stanley v. Anderson

• Decision Date: 10 December 1895
• Citation: 107 Mich. 384,65 N.W. 247
• Court: Michigan Supreme Court
• Parties: STANLEY v. ANDERSON.

65 N.W. 247

107 Mich. 384

STANLEY v. ANDERSON.

Supreme Court of Michigan

December 10, 1895

Error to circuit court, Newaygo county; John H. Palmer, Judge.

Action by John Stanley against William A. Anderson on a contract. Plaintiff obtained judgment, and defendant brings error. Modified.

William D. Fuller (A. F. Tibbitts, for counsel) for appellant.

Edgar L. Gray, for appellee.

HOOKER J.

Stanley recovered a judgment for $300 damages and $5.26 costs, in justice court, on July 22, 1875, against Anderson, who thereupon appealed to the circuit court. Defendants Cole and Reynolds were his sureties upon the appeal bond, which was in the penal sum of $610.52. The case was tried at circuit in 1894, and resulted in a judgment against Anderson and his sureties upon the appeal bond for $603.20 damages and costs to be taxed, from which judgment the defendant appeals to this court.

The declaration in justice court was in writing, and set up a copy of a contract, as follows: "This agreement, made this 11th day of September, 1868, between William A Anderson, of the township of Denver, county of Newaygo, and state of Michigan, of the first part, and John Stanley, of the place aforesaid, of the second part, witnesseth that the aforesaid parties agree to and with each other as follows, to wit: In consideration of the sum of $400, to him in hand paid, the party of the first part, the receipt whereof is hereby confessed and acknowledged: Now therefore, he agrees to do for the party of the second part sawing to the amount of the aforesaid sum, at the usual price, at the mill of William A. Anderson, situated on the west half of the northwest quarter of section 30, in town 14 N., 13 W. The party of the second part is to furnish the logs as follows, to wit, enough to come to $100, each and every year until the above amount is paid. And, if said Stanley fail to furnish the logs as stated above, all is to become due in good, salable lumber, at the customary price, at the end of four years from this date, at the aforesaid sawmill." The declaration continued as follows "And the plaintiff, further complaining of the said defendant, avers that the said above-mentioned period of four years from the said 11th day of September, 1868, has long since elapsed, and that the said defendant has not performed the labor in said agreement by him agreed to be performed, and has not delivered the said materials by him agreed to be delivered, to the damage of said plaintiff of $300." It will be noticed that this declaration does not allege that the plaintiff had failed to deliver the logs to be sawed, where by he became entitled to lumber under the contract, and that it does not state that any demand for lumber under said contract had been made. No plea was filed in the justice court, but at the circuit, on December 12, 1892, a plea of the general issue was filed, without leave of court. On February 26, 1893, a trial was begun, and plaintiff submitted to a nonsuit, which was set aside; and on September 20, 1893, by leave of court, an amended declaration was filed, to which, after the denial of a motion to quash, the plaintiff filed a plea of the general issue, with notice of the statute of limitations. The amended declaration is similar to the first, but contains the allegations mentioned, as omitted from that; and defendant contends that this was the introduction of a different cause of action, and that it was error not to direct a verdict under the notice of the statute of limitations. It is said further that the declaration first filed was merely a declaration on the common counts (they being appended to the special count), because the special count stated no cause of action, and, therefore, that the second declaration set forth a new cause of action. Had the first declaration been attacked in justice court by a demurrer, it would probably have been found insufficient. Then the plaintiff would have been permitted to amend. But the defendant chose to wait until the case reached the circuit. Pleadings in justice court, where not demurred to, are construed liberally; and if this declaration was not technically sufficient, in the opinion of the court, it was within his...