Janiszewski v. Behrmann

75 N.W.2d 77, 345 Mich. 8, 1956 Mich. LEXIS 364

• Court: Michigan Supreme Court
• Decided: March 1, 1956
• Docket: Docket 8, Calendar 46,526
• Status: Published

Opinions

Boyles, J.

(concurring in affirmance). In this case, I choose to shear away all the arguments arid citations in support of opposing viewpoints, which rely on statutory and common-law- precedents and decisions. The relatively unimportant but only real issue in the case is this:

Under the material facts and circumstances as alleged by the plaintiff in his declaration (which must be taken as true), should the plaintiff be allowed to pursue his suit, started more than 3 years after his cause of action accrued?

If, by fairly construing the averments in plaintiff’s amended declaration, his action is one to recover damages for injury to property, it is barred by the statute. See subdivision 2, CLS 1954, § 609.13 (Stat Ann 1953 Cum Supp § 27.605).

The declaration, in full, is in the record. The first of the 3 counts, captioned “Trespass on the case for damages,” sets up, in 13-1/2 pages in the printed record, in quite minute detail, the facts and circumstances on which the plaintiff relies to recover damages, by alleging wrongful acts and false, fraudulent, wilful and intentional concealment thereof by the defendants. Said count concludes with a prayer for damages by reason thereof. The second count, captioned “Trespass on the case upon promises,” in approximately 14 printed pages reiterates the allegations set up in the first count, and concludes that by reason thereof the plaintiff not only did

“lose and.was deprived of certain moneys to him belonging and his certain goods, wares and merchandise and the value thereof to him belonging, but in addition thereto * * * did lose great gains and profits that otherwise would have come to him * * * by reason whereof your plaintiff did sustain and was damaged in this regard in a large and substantial sum * * * for the recovery of which this action under count 2 of this declaration is brought.”

In count 3, captioned “Common counts,”

* the declaration alleges:

“That by reason, of the said several premises in preceding count 2 described, the within named defendants * * * are indebted unto your plaintiff in the sum of $50,000 * * * in a like sum of money for the price and value of work done by the plaintiff for the defendants * * * in a like sum of money then and there lent by the plaintiff to the defendants *, * * in a like sum of money then and there paid by the plaintiff for the use of the defendants * * * in a like sum of money then and there received by the defendants for the use of the plaintiff * * * and in a like sum of money then and there found to be due from the defendants to the plaintiff on an account stated between them.

“And your plaintiff herewith declares in an action of assumpsit on all the common counts and especially on fraud, and fraud and deceit and fraud and conspiracy all in preceding count of this declaration described * * * and for the recovery of which this suit is brought.”

Apparently the declaration, in its entirety, seeks to avoid the impact of the 3-year statutory limitation against plaintiff’s suit, and also to rely on the “fraudulent concealment” exception to the 3-year limitation found in paragraph 20 of the same act (CL 1948, § 609.20 [Stat Ann § 27.612]).

Both in his answer to defendants’ motion to dismiss, as well as here, plaintiff relies on his amended declaration as a whole. He does not elect as between counts. His suit still remains as a suit for damages “for injury to * * * property,” relied upon in the declaration as a whole. It is barred by the statute of limitations.

For the above reasons I concur in affirming the order of the trial court dismissing the case.

Kelly, J., concurred with Boyles, J. Black, J., took no part in the decision of this case.

Meaning, of course, common counts in assumpsit. See 3 Mich Law & Practice, Assumpsit, p 100. There are no' “common counts” in tort.