Wilcox v. Toledo & A. A. R. Co.
| Decision Date | 11 June 1880 |
| Citation | 5 N.W. 1003,43 Mich. 584 |
| Parties | WILCOX v. TOLEDO & ANN ARBOR RAILROAD COMPANY. |
| Court | Michigan Supreme Court |
Pleadings in justices' courts are to be viewed with liberality; and where a declaration, though informal, fairly apprises the defendant of the claim made against him, it will be held sufficient if not demurred to. Suit on a conditional promise to pay money to the order of a railroad company. The promise was in writing, and was filed with the justice as the sole cause of action. Upon it was indorsed the name of a person who added to his name the word "assignee." The defendant pleaded the general issue, and went to trial. It was shown in the trial that the payee in the promise had been put in bankruptcy, and the indorser of the paper was assignee in bankruptcy thereof. Held, that the objection that the plaintiff did not by its declaration aver its right to recover as an assignee, would not be sustained on the final submission of the case.
Where the assets of a railroad company are sold in bankruptcy, and the purchaser of its assets transfers them to another, who organizes a new company, and in the papers expressly recognizes the new company as assignee from him of the assets, this is a sufficient assignment to enable the new company to bring suit upon obligations given to the old company. A railroad company having completed a railroad, and being engaged in operating it, must be deemed, in suits brought by it, a corporation de facto, and a private individual thus sued cannot contest its legal organization. Swartwout v. Railroad Co. 24 Mich. 389.
Error to Washtenaw.
Wilcox & Potter, for plaintiff in error.
A.W Hamilton and Fraser & Hamilton, for defendant in error.
This case had its origin in a justice's court, where the railroad company brought suit upon the following paper writing as its sole cause of action:
Indorsed on back "E.D. KINNE, Assignee."
The judgment was removed to the circuit court by certiorari, the plaintiff in error assigning six errors. The first three of these go to the order in which evidence was admitted in the justice's court. As the order was discretionary with the justice, these assignments of error need not be further noticed. The others were as follows: "Fourth, that said justice erred in admitting any evidence of an assignment or assignments under plaintiff's declaration upon said special contract, which was not transferable except by assignment, since no assignment was suggested or averred in said declaration; fifth, that said justice erred in admitting said contract declared upon in evidence, there appearing upon the face to be no privity of contract between plaintiff and defendant, since defendant was apprised neither by suggestion nor averment, and no evidence of ownership by plaintiff of said contract; sixth, that said justice erred in denying defendant's motion to nonsuit the plaintiff for the variance between the cause of action set forth in his declaration and his proof upon the trial."
The declaration was oral, and was entered by the justice on his docket as follows: "On the common counts in assumpsit, and on note or contract, now here filed as a part of the declaration, and claims damage, three hundred dollars." The plaintiff also notified defendant that the paper writing was the sole cause of action.
The defence is entered as follows: "The defendant demands trial of the matter set forth in the plaintiff's declaration, and gives notice that he will show, under his plea of the general issue, a failure of the consideration in this to wit: That the said contract declared on, if performed at all on the part of the promisee, was not performed within a reasonable time, by reason of which the defendant received no benefit on its performance, in this, to wit: At the date of said contract defendant was owner of, and possessed of, lands of great value, to wit, of the value of five thousand dollars, which said land it was contemplated by said contract would, by its performance within a reasonable time, be benefited and rendered of greater value to defendant, to wit, by the performance of the promises on the part of said promisee; and by reason of the delay in the performance on the part of the said promisee said lands were not increased in value, and said defendant was not benefited."
There was no denial under oath, by the defendant, of the execution of the paper writing, and therefore under the law it was admitted. On the trial the plaintiff proved by one Crane that the Toledo, Ann Arbor & Northern Railroad Company was thrown into bankruptcy on his petition August 13, 1875; that E.D. Kinne was appointed assignee thereof, and as such sold the assets of the company, including the paper sued upon, and that witness became the purchaser of said assets, including the writing sued upon, and that Kinne indorsed his name as assignee upon such writing. Plaintiff also proved a deed from said Kinne, as assignee in bankruptcy of said railroad company, to said Crane, of the real estate, property and franchises of said company, including, among other things, about $40,000 in promises to pay money, conditioned upon the laying of the iron of the road-bed, which deed bore date October 6, 1875. Also, a deed from said Crane to James M. Ashley, of the same real estate, property and franchises, bearing date June 26, 1877. The foregoing evidence was objected to, for irrelevancy, and also because Kinne's title as assignee was not proved. This last objection was obviated afterwards by record evidence.
Plaintiff also put in evidence an authenticated copy of the declaration of incorporation of the Toledo, Ann Arbor & Northern Railroad Company, filed in the office of the secretary of state, November 23, 1877, and proved by James M. Ashley, Jr., that this company had fully completed and ironed the road from Toledo to Ann Arbor, and was operating it. Also, by another witness, that the completed road runs within 100 rods of the Whiting Hotel, in Milan. Also, that demand of payment had been made of defendant, which he had refused to make. The writing was then put in evidence, and plaintiff rested. Defendant then moved for a non-suit on the following grounds: "First, that the declaration does not allege any assignment of the instrument declared on, and the evidence shows its right to recover as assignee only, if it shows right to recover at all; and, second, that plaintiff's declaration does not aver an assignment from the Toledo, Ann Arbor & Northern Railroad Company to the plaintiff, or to its assignor, and the evidence establishes its right to recover only under such assignment or assignments."
The third was substantially the same as the second. The justice denied the motion, and defendant offering no evidence, the plaintiff had judgment. Other objections were made in this court, but these were all to which the attention of the circuit court was called, and we can consider no others. The fourth and sixth assignments of error cover the same ground as the defendant's motion for a nonsuit before the justice, and they go no further. Their complaint is that the plaintiff was allowed to recover, as assignee, without having alleged an assignment in his declaration. The complaint is, therefore, to the form of the plaintiff's pleading.
It is no new thing to have an objection of this sort to the pleadings in justices' courts raised before us. As the proceedings in those courts are commonly managed by parties unlearned in the law, defects in their allegations, when tested by the rules of art, are to be expected in almost every case which is at all complicated. If every such objection were disregarded, pleadings in justices' courts would, in effect, be dispensed with. Every plaintiff might allege as much or as little as he pleased, and recover without regard to his allegations. If every one were sustained which would be good if made to pleadings in courts of record, the parties in justices' courts would be driven to the employment of legal assistance in every case, and these courts, which are intended for the easy and inexpensive redress of wrongs not of great magnitude, would cease to accomplish their purpose.
This court has adopted neither the one course nor the other. It has required the plaintiff in justice's court to apprise the defendant fairly of the cause of action relied upon, but when this has been done the court has refused to regard formalities or technicalities. The object of the declaration is fully accomplished when the defendant is fairly apprised by it of the grounds of the plaintiff's claim, so that he need be under no misapprehension as to what matters are to be litigated on the trial. Hurtford v. Holmes, 3 Mich 460; Daniels...
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