Wineman v. Fisher

• Decision Date: 16 February 1904
• Court: Michigan Supreme Court
• Parties: WINEMAN v. FISHER.

98 N.W. 404

135 Mich. 604

WINEMAN v. FISHER.

Supreme Court of Michigan

February 16, 1904

Error to Circuit Court, Wayne County; Flavius L. Brooke, Judge.

Action by Hugo A. Wineman against Frank E. Fisher in justice court. Plaintiff obtained judgment, and on appeal to the circuit court there was a judgment for defendant, and plaintiff brings error. Reversed.

William Stacey, for appellant.

George W. Bates, for appellee.

CARPENTER J.

Plaintiff brought this suit in justice court. His declaration was 'in an action of assumpsit on all the common counts, and specially on a certain judgment rendered by Justice Stein one of the justices for the city of Detroit, on the 3d day of July, A. D. 1899, in favor of said plaintiff * * * and against the Fisher Electrical Manufacturing Company, on a labor debt, for the sum of $251.16 and interest since the date of such judgment. Recovery is sought in this case under section 7065, Comp. Laws 1897, which makes stockholders of a corporation personally liable for labor performed for the corporation.' The plea was the general issue, with notice that defendant would rely upon a discharge in bankruptcy. The trial in the justice court resulted in a judgment for plaintiff. The case was appealed to the circuit. On the trial in that court plaintiff offered in evidence the judgment referred to, which contained this recital: 'That the entire amount of said judgment is for labor performed by the plaintiff for the defendant prior to the 15th day of February, 1898, and that the same is a preferred claim under act No. 94 [page 103] of the Public Acts of 1887, against the estate of the defendant.' He also offered in evidence an execution returned unsatisfied. These were objected to on the ground that defendant, as a stockholder, is not bound by any judgment against the original debtor. This objection was overruled, and the judgment and execution admitted in evidence. Defendant introduced in evidence a discharge in bankruptcy, dated July 12, 1899. By its terms defendant was 'discharged from all debts and claims which are made provable by said acts, against his estate, and which existed on the 17th day of May, A. D. 1899, * * * excepting such debts as are by law excepted from the operation of a discharge in bankruptcy.' The schedule of liabilities in the bankruptcy proceedings did not include plaintiff's claim. The court directed a verdict for the defendant upon the ground that the discharge in bankruptcy put an end to his liability. Leave was reserved at the same time to enter a verdict for the plaintiff if, on a motion for a new trial the court should become convinced that such a direction was proper. In opposition to a motion for a new trial, defendant was permitted to urge that the verdict was properly directed, not only because of the discharge in bankruptcy, but because the declaration did not set forth a cause of action, and also because there was no evidence that plaintiff had performed labor for the Fisher Electrical Manufacturing Company; and the court for these reasons, as well as for the reason that the discharge constituted a defense, denied the motion. We think, under the liberal rules governing practice in justice court, the declaration was sufficient. See Hurtford v. Holmes, 3 Mich. 460; Cicotte v. Morse, 8 Mich. 427. It clearly apprised defendant of the claim asserted against him, and was not open to objection under the decisions of Tilden v. Young, 39 Mich. 58, and Chicago & Northeastern R. R. Co. v Sturgis, 44 Mich. 538, 7 N.W. 213. We do not think that the objection that there was no evidence that plaintiff had performed labor for the Fisher Electrical Manufacturing Company should have been considered by the circuit judge on the motion for a new trial, nor that it should be considered by this court. Assuming that the recital that 'the entire amount of said judgment is for labor...