Gilbert v. Fletcher

145 N.W.2d 394, 4 Mich. App. 676, 1966 Mich. App. LEXIS 597

• Court: Michigan Court of Appeals
• Decided: October 25, 1966
• Docket: Docket No. 787
• Status: Published

Opinion

J. H. Gillis, J.

Plaintiff, C. Norris Gilbert, on November 9, 1964, instituted suit against defendant, Foster L. Fletcber, doing business as Tpsilanti Credit Bureau, contending that he furnished an inadequate, incomplete, and misleading credit report for a consideration to the plaintiff and as a result thereof plaintiff was damaged. Defendant filed a motion for accelerated judgment requesting in the alternative that a motion for summary judgment be granted contending the complaint failed to state a cause of action. The trial court, after allowing two amended complaints to be filed, granted the motion for summary judgment.

This Court must determine whether the second amended complaint has stated a claim upon which relief can be granted. Each of the parties hereto filed affidavits in support of and in opposition to the motion. Depositions were taken and filed.

*

Plaintiff’s complaint alleged that he had operated a men’s clothing store in Big Rapids, Michigan; that an offer of purchase was made to the plaintiff by persons interested in purchasing said business, including one Donald Duane Thompson who was a strang’er to the plaintiff; that defendant was hired to furnish a credit and background report on Thompson; and that defendant breached a duty owed to plaintiff in failing to report a 1958 conviction of Thompson for embezzling more than $1,300 from the Peoples National Bank, Grand Rapids, Michigan.

The complaint further alleged that the plaintiff relied upon the report, entered into a sales agreement with Thompson for the sale of the business which subsequently failed due to the “incompetency and lack of good business judgment of Donald Duane Thompson,” and plaintiff thereby sustained the loss of $10,771.26. The second count of the complaint alleged a breach of an implied warranty.

This second amended complaint, like the two prior complaints, is replete with shortcomings. It fails to show the basis for the duty allegedly owed the plaintiff by defendant to furnish a true, accurate background report. No contractual relationship is alleged but merely an allegation that the defendant was paid a consideration to prepare the report. It fails to allege who paid the consideration or who employed defendant to furnish the report. It fails to allege whether the business sold to Thompson, pursuant to some agreement, was in default. In fact, it fails to allege whether Thompson was the sole purchaser. The credit report attached to the complaint rebuts plaintiff’s theory that there was a breach of an implied warranty. The report reads:

“The above information is furnished in response to an inquiry for the purpose of evaluating credit risks. It has been obtained from sources deemed reliable, the accuracy of which this organization does not guarantee.”

In addition thereto it provides that the report covers a two-year period preceding September 19, 1962, the date of the report. Thompson’s conviction was in 1958. Finally, there is a complete failure in the complaint to show or allege any correlation between the failure to report the embezzlement by Thompson and the loss suffered by plaintiff through the failure of the business.

The trial court correctly determined that the complaint failed to state a claim upon which relief could be granted. See Fostini v. City of Grand Rapids (1957), 348 Mich 36; Roblyer v. Hoyt (1955), 343 Mich 431.

Affirmed. Costs to appellee.

Fitzgerald and Quinn, JJ., concurred.

GCR 1963, 116 and 117, should he examined to determine when affidavits in support of motions brought pursuant to these rules are required. See Durant v. Stahlin (1965), 375 Mich 628.