White Star Ref. Co. v. Evans

• Court: Michigan Supreme Court
• Writing for the Court: NORTH Justice.
• Citation: White Star Ref. Co. v. Evans, 269 Mich. 636, 257 N.W. 915 (Mich. 1934)
• Decision Date: 11 December 1934
• Docket Number: Motion No. 17.
• Parties: WHITE STAR REFINING CO. v. EVANS.

269 Mich. 636

257 N.W. 915

WHITE STAR REFINING CO.

v.EVANS.

Motion No. 17.

Supreme Court of Michigan.

Dec. 11, 1934.

Suit by the White Star Refining Company against Frank J. Evans and another. From an order transferring the cause from the chancery to the law side of the court, named defendant appeals in the nature of mandamus.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Argued before the Entire Bench.

Lynch & Hinks, of Detroit, for appellant.

Goodenough, Voorhies, Long & Ryan, of Detroit, for appellee.

NORTH Justice.

After this cause was at issue, the trial court entered an order transferring it to the law side of the court. Permission having first been obtained, defendant Frank J. Evans appealed in the nature of mandamus. The primary question presented is the right or authority of the circuit judge to transfer this cause from the chancery to the law side of the court.

As set forth in the bill of complaint originally filed, plaintiff's case is based upon the following facts: Plaintiff was engaged in the business of producing and selling motor fuels and lubricants. Defendant Evans, as the lessor and operator of a filling station, entered into a contract to buy all motor fuels and lubricants handled or sold at his service station from plaintiff for a period of one year from date (February 26, 1928), ‘and thereafter until cancelled by either party on six (6) months' written notice.’ On April 6, 1931, Evans served notice of termination of the contract, effective October 6, 1931. Prior to the last-mentioned date Evans began dealing in motor fuels and lubricants other than plaintiff's. The contract contained the following provision: ‘Whereas serious and substantial damage will be suffered by seller in case buyer refuses or neglects to purchase fuels and lubricants as above specified, and exact proof thereof will be difficult, buyer agrees that, in case of such refusal or neglect, he will pay to seller as liquidated damages a sum equal to $225.00 multiplied by the number of months remaining between date of such breach and expiration of this contract. Such sum shall be paid by buyer to seller upon demand in case of buyer's refusal to continue to purchase motor fuels and lubricants from seller, or in case buyer purchases same elsewhere, seller being ready, willing and able to furnish buyer with his requirements. In other respects, damage sustained by either party in case of breach shall be proven in the manner provided by law.’

The bill further alleges that, in an attempt to evade his contractual obligations, Evans arranged with a concern known as the Woodward Oil Corporation to take over his service station, but this arrangement was wholly fictitious and made for the purpose of enabling Evans to discontinue buying motor fuels from plaintiff and to sell at his service station motor fuels and lubricants other than plaintiff's without incurring liability for breach of his contract, and that Evans in truth and in fact was continuing to operate, control, and manage the station for his own benefit, and not as an agent or employee of the Woodward Oil Corporation. The plaintiff prayed for discovery which would reveal the true nature of the transaction whereby the Woodward Oil Corporation, which was made a defendant with Evans, acquired an interest in the Evans filling station and the consideration, if any, paid therefor. It sought injunctive relief both pendente lite and permanent, also general relief. Its bill of complaint was filed April 30, 1931.

Each of the defendants answered. Thereafter on the hearing of an order to show cause injunction pendente lite was denied. On October 14, 1933, plaintiff's motion to transfer the cause to the law side of the court was granted. From this order defendant Evans has appealed. By stipulation the suit was discontinued as to the Woodward Oil Corporation.

‘If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.’ Comp.Laws 1929, § 14008.

Transferring a cause from equity to the law side of the court, or vice versa, is not discretionary. Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 209 Mich. 380, 176 N. W. 409. It is appellant's contention...