Shaw v. Chase

43 N.W. 883, 77 Mich. 436, 1889 Mich. LEXIS 759

Opinions

Campbell, J.

This case was decided below on demurrer to tbe bill, which was overruled, and defendants appealed. Although other grounds were taken, the statute only allows us to consider, in such a case, the .general demurrer; and according to the rules of practice a general demurrer cannot be sustained if the bill makes out any cause whatever for equitable relief. '

This bill sets out, among other things, that complainant was formerly partner with defendants in the business of dealing in certain kinds of agricultural implements, and in the fall of 1887 sold out to them his interest in all but 824,000, which was laid asi'de to abide the result of some existing or threatened litigation; that he was not personally familiar with the condition of the business, and accepted the 816,000 as the amount represented to him by his associates as the sum to which his interest amounted.

The bill sets up that he was in this deceived and defrauded, and that his interest was really a very large sum beyond what they represented. He also, alleges and claims that the 824,000 is not required to meet the purposes for which it was set aside, and that he should have his on'e-fourth of that sum, or so much as remains of it, restored to him.

This bill sets out a substantial fraud in the sale, and a right to an accounting for the fund reserved. Both of these are recognized grounds of equitable jurisdiction, and they involve here the additional element of a fiduciary relation, which is also proper for equitable treatment.

This being so, it is not material, on this appeal, to look into any of the other special grounds of demurrer. The court below has decided them against defendants, and ordered them to answer, and that order we cannot, at this stage, interfere with.

The order overruling the demurrer must be affirmed, and the time to answer enlarged to 60 days from this decree of affirmance.

Champlin, Morse, and Long, JJ., concurred.