Frischman v. Robinson

110 N.W.2d 741, 363 Mich. 624, 1961 Mich. LEXIS 495

• Court: Michigan Supreme Court
• Decided: September 21, 1961
• Docket: Docket No. 53, Calendar No. 48,958
• Status: Published

Opinions

Kavanagh, J.

Plaintiff sued defendant in assumpsit declaring upon 5 promissory notes, each dated January 17, 1955, and made payable to “Windsor House.” Each was in the amount of $500, payable' on January 28, February 16, February 28, March 28, and April 18, 1955. Plaintiff alleged defendant had refused and neglected to pay the amounts due on the notes though often requested so to do. Each of the notes contained on the reverse side thereof the following:

“For valuable considerations I hereby sell, assign, and set over unto Mas Frischman, all rights, title and interest in the within note.

“/s/ Windsor House

“/s/ Ella Frischman”

Defendant filed an answer denying the execution of the notes, alleging there were actually 10 notes prepared by plaintiff Max Frischman and that defendant was requested to sign them as an accommodation for the plaintiff, although the notes were payable to plaintiff’s wife and were strictly as an accommodation with no consideration of any kind or nature. Defendant denied he was ever requested to pay the notes and asserts the truth is that the first 5 of the 10 notes were paid by plaintiff. Defendant further submitted there was fraud in the inception by reason of plaintiff’s request for said notes with the knowledge and intent that payment would be requested of defendant, even though plaintiff well knew there was no consideration.

No reply to the affirmative matters alleged in the answer was made by plaintiff.

The pretrial statement set forth defendant’s claim as follows: Defendant admits the execution of the notes in question, but denies there was any consideration for the notes. He claims he owes the plaintiff nothing; that the notes were given to plaintiff’s wife as an accommodation and on the representation of plaintiff and his wife that they would discount the notes and obtain funds. Defendant further claims plaintiff and his wife were to pay the notes and there was to be no liability on the part of defendant.

At the conclusion of plaintiff’s opening statement to the jury, defendant made a motion, based on the opening statement and pleadings, for a judgment of no cause of action. Defendant claims the answer set up special defenses, affirmative defenses and affirmative matters and since no reply to the affirmative matters was made in the pleadings they are admitted as facts without any further proofs. The trial court, after argument of the issue, granted a motion for no cause of action in favor of defendant holding that failure to reply to affirmative matters or new matters alleged in the answer was tantamount to admissions of such matters.

After it was apparent to plaintiff’s counsel the court was going to direct the judgment on the pleadings, he sought the opportunity to file a reply and made an oral motion to the court to permit him to answer the affirmative matters. This was denied by the trial court.

Two questions are presented on appeal by plaintff:

(1) Was the trial court in error in directing a' verdict upon the ground that plaintiff should have filed a reply to defendant’s answer?

(2) Should the trial court have permitted amendment at trial, no claim of surprise or prejudice being claimed by defendant?

In granting defendant’s motion, the trial court relied upon the opinion of Justice Carr in Neada v. State Farm Life Insurance Co., 324 Mich 233. Mr. Justice Carr, writing for the Court, called attention to Michigan Court Buie No 23, § 2 (1945), which reads in pertinent part as follows:

“Every material allegation in the declaration or bill to which the defendant shall not make answer shall be taken as admitted by the defendant.”

Justice Carr then referred to Michigan Court Buie No 24, § 1 (1945), which provides as follows:

“New matter alleged in the answer filed in any action shall be answered by a reply in the same manner that allegations in the declaration or bill of complaint are required to be admitted or denied in the answer.”

It was concluded that affirmative matters properly averred in an answer but not denied in a reply should be considered as admitted.

In the instant case, clearly new matters were alleged in the answer contrary to the argument of plaintiff. No reply to the affirmative or new matters having been filed, we think the trial court was correct in granting the motion for a directed verdict for no cause of action. See Zdero v. Briggs Manufacturing Co., 338 Mich 549.

The second question involving amendment by plaintiff at trial was clearly a matter within the discretion of the trial court. Grant v. National Manufacturer & Plating Co., 258 Mich 453. The trial court pointed out to plaintiff’s counsel that not only had he failed to follow the court rules with respect to answering affirmative matters by filing a reply, but that at the time of pretrial hearing, when defendant clearly stated his position, plaintiff sought no opportunity to file a reply. Plaintiff informed the court he was satisfied with the pleadings at the time of pretrial. Pertinent portions of Rule No 32 of •circuit court rules for the third judicial circuit of Michigan read as follows:

“(c) Attorneys who will conduct the trial, unless excused by the pretrial judge, shall appear in court promptly and shall be prepared to consider the following matters and to perform the following acts: * * *

“(5) to amend pleadings where leave to do so is timely requested and to concede that each of the .parties may, without further amendment to their pleadings, introduce competent proofs to support tlieir respective versions of the case as pleaded and as stated by them at the pretrial conference.”

See Simonelli v. Cassidy, 336 Mich 635, 640, where this Court said:

“The purpose of that portion of the rule quoted is to expedite the trial of cases by disposing of all amendments to the pleadings on a pretrial hearing and before the cause is assigned to a judge for final hearing. While the right to amend for good and sufficient reason, in the discretion of the trial court, exists after the pretrial hearing, nevertheless in the orderly administration of justice, such amendments should be permitted only under the most compelling circumstances.”

We cannot say, under the circumstances of this case, that the trial court abused his discretion.

The judgment of the lower court for no cause of action is affirmed. Defendant not having filed a brief on appeal, no costs are allowed.

Dethmers, C. J., and Carr, Kelly, and Black, JJ., concurred with Kavanagh, J.