Tomlinson v. Imperial Hotel Corp.

• Decision Date: 04 December 1928
• Docket Number: No. 21.,21.
• Citation: 245 Mich. 52,222 N.W. 104
• Parties: TOMLINSON v. IMPERIAL HOTEL CORPORATION.
• Court: Michigan Supreme Court

245 Mich. 52

222 N.W. 104

TOMLINSON

v.IMPERIAL HOTEL CORPORATION.

No. 21.

Supreme Court of Michigan.

Dec. 4, 1928.

Error to Circuit Court, Wayne County; Dewitt H. Merriam, Judge.

Action by Lena H. Tomlinson against the Imperial Hotel Corporation.Judgment for plaintiff.Defendant's motion to set judgment aside and for a new trial was denied, and defendant brings error.Judgment reversed and set aside, and new trial granted, with directions.

Argued before FEAD, C. J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ.Dennis Boyle, of Detroit (Edmund E. Shepherd, of Port Carling, Ont., Canada, of counsel), for appellant.

Paul R. Dailey, of Detroit, for appellee.

SHARPE, J.

Plaintiff's action was brought to recover on a promissory note given her by defendant.Defendant's plea was accompanied by a notice of set-off.On plaintiff's demand it filed a bill of particulars on August 18, 1925, in which it claimed in specific items that plaintiff was indebted to it for moneys which had come into her hands as bookkeeper and auditor for defendant, and which she had failed to account for, in the sum of $2,405.83.The execution of the note was not denied.On October 1, 1925, plaintiff moved for a summary judgment.Defendant filed an affidavit of merits and with it a supplemental bill of particulars, in which the money claimed to be due under its set-off, amounting to $2,168.09, was more particularly itemized.The record fails to disclose any action taken on this motion, but it is said to have been denied.On January 3, 1926, plaintiff filed a motion to advance the cause for hearing, filing affidavits in support thereof.This motion was denied.On April 4, 1928, she filed a motion for summary judgment, accompanied by an affidavit in support thereof in which she averred ‘that she believes that the plea heretofore filed by said defendant was solely for the purpose of delaying this action.’Defendant filed three affidavits in opposition thereto.The assistant treasurer of defendant deposed in part:

‘That the plaintiff was formerly employed as bookkeeper of said corporation, and upon an audit of the plaintiff's books and accounts it was found that the entire daily receipts were not deposited in the bank used for that purpose and that the discrepancies in the bank deposits and cash sheets amount to two thousand three hundred and seventh ($2,370.22) dollars and 22/100 and upwards covering the seven months period.

* * *

‘Deponent further states that plaintiff has knowledge of these discrepancies and has made no reply thereto or explanation thereof.’

The affidavit of defendant's president stated that he hired plaintiff‘as bookkeeper, cashier and auditor’; that she had ‘sole charge of the books, records and invoices of the corporation’; that it was her duty ‘to deposit the daily receipts in the bank account kept for that purpose to the credit of the corporation,’ and ‘to balance the books and accounts and make daily reports of the business of the corporation’; that she was dismissed from such employment ‘owing to the many infractions of the duties which devolved upon her’; that he employed the services of an auditor, and from his report it was found ‘that there existed discrepanies in the daily bank deposits not in harmony with the cashbook entries.’The amounts thereof for several months were then stated.He also deposed that when plaintiff left defendant's employ she owed it $58 for restaurant...