Schreiber v. Adams

Potter, J. Plaintiff sued defendant on all the common counts in assumpsit for rent due under a lease of real estate in Detroit, by which defendant covenanted: “To 'pay the lessor as rental for said premises the sum of $516.67 May 1, 1930, and a like sum in advance on the first day of 'each calendar month thereafter during the term of this lease. * * * *2 “In addition to the foregoing rents, the said lessee does hereby agree to pay upon the 15th day of July- and the first day of December of each and every year, 25 per cent, of all taxes, of every nature and description, which may be assessed against the premises known and described as 116 Michigan avenue. Said instalments shall be deemed rent reserved under this lease.” It is undisputed that there was due from defendant, rent for November, 1931, $516.67; interest upon that sum from November 1, 1931, to January 2, 1932, at 5 per cent., $4.30; 25 per cent, of the taxes assessed against the property, $997.85; interest thereon from the date that the same was due to the date of judgment, $23.12; total, $1,541.94. Judgment was rendered for plaintiff for $1,562.08. Subsequently plaintiff filed a remittitur in the circuit court for $20.14, reducing the judgment rendered to $1,541.94. Defendant appealed, claiming plaintiff should have paid the taxes and billed defendant for his proportionate part thereof. This is answered by the covenant of the.lease above quoted. No penalties are included in the judgment. No interest above 5 per cent, is charged to defendant. Defendant contends there can be no recovery under the common counts in assumpsit with no special count and no count for use and occupation in the declaration. In so far as the amounts involved in the judgment are concerned, plaintiff had fully performed the contract on his part, and all that remained for defendant to do was to pay the money due from him to plaintiff. Under such circumstances, even though the cause of action is grounded upon a special contract, performance relieves the plaintiff of declaring specially upon the contract, and an action upon the common counts in assumpsit will lie to recover the *3 amount equitably clue from defendant to plaintiff. Begole v. McKenzie, 26 Mich. 470; McGraw v. Sturgeon, 29 Mich. 426; Thomas v. Caulkett, 57 Mich. 392 (58 Am. Rep. 369); Nugent v. Teachout, 67 Mich. 571; Flint & P. M. R. Co. v. Wayne Circuit Judge, 108 Mich. 80; White v. Taylor, 113 Mich. 543; Nicol v. Fitch, 115 Mich. 15 (69 Am. St. Rep. 542); Snelling v. Brown, 167 Mich. 202; Sharrar v. Nestle, 222 Mich. 538; American Cigar Co. v. Shewitz, 224 Mich. 556; 1 Green’s Practice (3d Ed.), p. 415; 5 C. J. p. 1381. We discover no error. Judgment affirmed, with costs. Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.