Stephenson v. Union Guardian Trust Co., 55.

• Decision Date: 06 June 1939
• Docket Number: No. 55.,55.
• Citation: 289 Mich. 237,286 N.W. 226
• Parties: STEPHENSON v. UNION GUARDIAN TRUST CO.
• Court: Michigan Supreme Court

289 Mich. 237

286 N.W. 226

STEPHENSON

v.UNION GUARDIAN TRUST CO.

No. 55.

Supreme Court of Michigan.

June 6, 1939.

Action by Eugene J. Stephenson against Union Guardian Trust Company for amount collected by defendant as rentals on premises purchased by plaintiff, and for damages for forcible entry and detainer. From an order dismissing the declaration, the plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Argued before the Entire Bench.

John R. Rood, of Lapeer, for appellant.

Levin, Levin & Dill, of Detroit, for appellee.

SHARPE, Justice.

On October 13, 1938, plaintiff filed a declaration in the circuit court of Wayne county in which it is alleged that plaintiff is a resident of Wayne county and defendant is a Michigan corporation with its principal office in the city of Detroit; that on or about February 13, 1930, William Prost, being the owner of certain real estate, appointed defendant company his agent to lease, operate and collect rents on said property and such authority was granted by a written instrument; that defendant has operated the premises, collected the rents and is indebted to said William Prost in the sum of $40,000; that on March 19, 1936, William Prost sold the premises including the rents collected by defendant to plaintiff herein and defendant now refuses to pay plaintiff any part of the rents collected; that prior to March 19, 1938, defendant admitted to plaintiff that it was owing said Prost the sum of $15,000 or over; that, relying on said statement by defendant, plaintiff purchased the rents and rights of action against the defendant; that subsequently, plaintiff served on defendant a notice of cancellation of the Prost power of attorney; that on or about March 23, 1938, defendant took possession of the premises and is accountable to plaintiff for all money received as rents, and further liable for treble damages for forcible entry and detainer; that defendant is indebted to plaintiff in the sum of $40,000 for money had and received by it for the use and benefit of plaintiff; and that defendant is indebted to plaintiff in the further sum of $40,000 on account stated between them.

November 18, 1938, defendant filed a motion to dismiss plaintiff's suit for the following reasons: First, said declaration does not contain a plain and concise statement of facts; the counts of said declaration are not indicated or numbered; the written instrument in the declaration is not set out or described, nor is a copy attached to the declaration, or a statement made that the written instrument is in the possession of defendant. Second, that the declaration does not comply with Court Rule No. 19 (1933) in that it does not contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend; and that the different counts in the declaration are not designated as such and numbered consecutively.

On November 23, 1938, plaintiff's attorney wrote defendant's attorney that certain numbered paragraphs in the declaration, namely, paragraphs 11 and 12, are common counts under which plaintiff seeks to recover for items of which the defendant, by reason of its being the collection agent, and having direct knowledge of what was done, and of which plaintiff can learn only from defendant, and because the particulars are more fully within the knowledge of the defendant than of the plaintiff, he is unable to specify.

On December 9, 1938, the trial court entered the following order: ‘It is ordered that the plaintiff's declaration heretofore filed in this cause be and the same hereby is dismissed unless the plaintiff file in said cause within ten (10) days after date of this order and serve upon defendant's counsel an amended declaration, which said declaration shall comply with the Michigan...