Stoflet v. Marker

• Decision Date: 20 June 1876
• Court: Michigan Supreme Court
• Parties: Daniel Stoflet v. Frederick Marker and another

34 Mich. 313

Daniel Stoflet v. Frederick Marker and another

Supreme Court of Michigan

June 20, 1876

Heard June 8, 1876

Error to Wayne Circuit.

Judgment reversed, with costs, and a new trial ordered.

Moore & Moore, for plaintiff in error.

Hamilton Baluss, for defendants in error.

OPINION

Graves, J.

This action was brought originally in justice's court, and was thence taken by appeal to the circuit. The defendants in error, who were plaintiffs in the action, were allowed to recover, and complaint is made that there were several errors in the proceedings.

Among other objections, it is urged that the declaration (a copy of which is given below) ^[*] set forth no cause of action. The point was expressly made by an objection to the introduction of evidence at the beginning of the trial.

Counsel for defendants in error now insist that as there was no demurrer, but a plea to the merits, there was a waiver of all right to insist upon the defect.

This is not so. The plaintiff in error was certainly entitled to object that there was no legal claim made against him, in substance or effect, to be answered. He was not bound to go into a controversy before a court and jury if he was not charged with any legal liability. Technical and formal matters were of course waived, but not such as were essential to show a cause of action of some kind. We must, then, look at the declaration, and on perusing it, it is difficult to ascertain whether the pleader intended to base his claim in tort or on contract. The action was, however, proceeded in on the part of the plaintiffs below on the assumption that Stoflet was charged with having made fraudulent representations to defendants in error concerning the goodness of a note against third persons which it is alleged he passed to defendants in error in part pay for a buggy, and their counsel now attempts to sustain the declaration as one framed to charge such a grievance.

Does it contain the substantial matters necessary to make out such a cause of action?

We think not. The note itself concerning which the representations are said to have been made is neither described nor sufficiently identified, and there is no allegation that the representations were not true at the time they were made, or any substantial allegation that as matter of fact they were untrue afterwards. In short the declaration fails to show in any way that the representations were untrue in point of fact, and hence fails to make out a charge of fraud. The pleading is so peculiar and ambiguous that it is not very easy to find out whet of substance it contains. But it is plain enough that it does not contain the substance of a good declaration in tort.

The objection was well taken and should have been sustained. The other points become unimportant.

The judgment must be reversed, with...