Gratiot Lumber & Coal Co. v. Lubinski

Sharpe, J. This is an appeal from a judgment for defendants upon their motion for a directed verdict. Plaintiff, the Gratiot Lumber & Coal Company, is a Michigan corporation engaged in the retail him *664 ber and Supply business in tbe city of Detroit. Defendants Anthony A. and Agnes Lubinski were engaged in modernizing a tavern. Defendant Andrew Musetti, Sr., supervised the modernizing of the tavern for Anthony A. and Agnes Lubinski. Defendant Andrew Musetti, Jr., son of Andrew Musetti, Sr., was employed as a salesman for plaintiff company. During the months of April, May and June, 1941; Andrew Musetti, Jr., permitted the delivery to Anthony A. and Agnes Lubinski of approximately $900 worth of material contrary to the requirements of plaintiff company that credit may only be extended when there is a signed order passed upon favorably by its credit bureau.' When this condition of affairs was called to the attention of the manager of plaintiff company a signed order was procured from Anthony A. and Agnes Lubinski, but before the credit report was examined and rejected more materials wefe delivered. At this time materials to the extent of $1,506.20 had been delivered, a part of which were taken from plaintiff’s yard by defendant Anthony. A. Lubinski personally. Defendants Lubinski had engaged Andrew Musetti, Sr., to superintend the work of modernizing the tavern. Anthony A. Lubinski admitted owing the bill and signed the receipt for the materials. Shortly after the last material was delivered to defendants Lubinski a writ- of garnishment had been served on them, as garnishee defendants, in an action against Andrew Musetti, Sr. A disclosure was filed by Anthony A. Lubinski in which he acknowledged owing Andrew Musetti, Sr., $1,405.70 on contract as a general contractor for labor, material and services. Between the time of the delivery of materials and the filing of the present suit the Lubinskis sold a piece of property located in *665 Detroit. The tavern where the materials were delivered was located in the city of East Detroit. Upon the refusal of defendants to pay for the materials plaintiff company filed its declaration in trespass on the case, setting forth but one count, in which it is alleged a fraudulent conspiracy on the part of all defendants for the purpose of obtaining lumber and materials from plaintiff company with intent to defraud plaintiff company. Defendants Lubinski filed an answer in which they denied owing plaintiff company any sums, and alleged that they were obligated to the defendant Andrew Musetti, Sr., as a general and independent contractor and that all sums owing him were impounded by a writ of garnishment. Subsequently, defendants Lubinski filed a motion to dismiss plaintiff’s declaration on the ground that these defendants and plaintiff company have no contractual relation between them, and because plaintiff’s cause of action lies solely against defendants Andrew Musetti, Sr., and Andrew Musetti, Jr. An order was entered denying defendants’ motion to dismiss the declaration, and the cause proceeded to trial. During the course of the trial defendant Anthony A. Lubinski testified as follows: “When the first material was delivered I got the invoice that accompanied the shipment. I knew that it bore my name. I did not go to the Gratiot Lumber & Coal Company following the 10th of May, 1941, regarding an account for the payment for materials because I had no money to go there with. I had nothing to offer them. When I received these bills, I did not speak to Mr. Musetti about them. I am speaking now of this group of invoices. ■ I never made complaint to him about them coming in my name. * # * *666 “I do not deny owing any bill. . “Q. Well, do you contend that this material was delivered on your account after you had made arrangements for it? “A. Oh, I did not make any arrangements for it. * * * “Q. * * * My question was, how do you explain your right to receive this material if you had made no arrangements for it? “A. Because I spoke to Mr. Musetti, and as long as the lumber had been shipped out there I took it for granted Mr. Musetti had made arrangements for the shipment of this lumber.” After this testimony had been received in evidence plaintiff’s attorney made a motion to waive the claimed fraud and amend the declaration to one in assumpsit. The trial court denied the motion on the theory that an opportunity had been given all parties to amend the pleadings when the cause came up on the pretrial docket, and for the further reason that Anthony A. Lubinski had filed a disclosure that he owed Andrew Musetti, Sr., as a general contractor, and that the Lubinskis could not interplead until the tort action had been dismissed. Further testimony was taken and at the close thereof defendants’ attorney moved for a directed verdict, which was granted. Plaintiff company appeals and urges that the trial court was in error in holding that plaintiff had not proved fraud on the part of the defendants, and for failure to permit plaintiff company to amend its declaration from an action of trespass on the case to an action in assumpsit. We are in accord with, and the record supports the following statement of the trial court: “I do not think there is any evidence here that raises any ground for submitting to you the question *667 whether or not there was such a fraudulent conspiracy entered into between these three parties or these four parties. “Mr. Lubinski never dealt directly with the Gratiot Lumber [& Coal] Company. He and the two Musettis met. He told them what he wanted to have done. Andrew Musetti, Jr., was there. He was there in his capacity as a salesman for the Gratiot Lumber [& Coal] Company. He took his memoranda as to the materials that were needed. At that time he did not get a written order from the Lubinskis. That was his fault. He is a salesman for the plaintiff company, he is representing the plaintiff company, and if he makes an error of judgment or forgets 'to do what his instructions call for him to do, that is not chargeable against the Lubinskis, under the testimony in the case. That is his fault, for which he is responsible to his employer, but it is nothing that the employer can lay up as against the Lubinskis. The only thing, under the testimony, that Anthony'Lubinski asked for at the hands of the Gratiot Lumber [& Coal] Company through Andrew Musetti, Jr., was, as Mp. Musetti, Sr., testifies, whether or not Musetti, Jr., could get him 60 or 90 days credit. That was all of the talk that took place between them. Andrew Musetti, Jr.,, went back to the company and he put in orders for the delivery of the goods, but he did not have a signed order from either Andrew Musetti, Sr., as contractor, or from Anthony A. Lubinski, as owner of the property. He should have had such an order as that under the rules and practice of the Gratiot Lumber [& Coal] Company, but there is not one syllable of testimony in the case to show that Anthony A. Lubinski knew anything at all about that practice, not a syllable. And if he did not know it was the duty of Andrew Musetti, Jr., to get such an order and lay that order on Mr. Striffier’s desk, nothing can be charged up against them if he did not get that order and if he did not present it to Mr. Striffler. That is a failure *668 on Ms part to perforin Ms duty to the Gratiot Lumber [& Coal] Company.” The statute and rule relating to amendments are as follows: “The court in which any action or proceedings shall be pending, shall have power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment or decree rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings, which do not affect the substantial .rights of the parties.” 3 Comp. Laws 1929, § 14144 (Stat. Ann. § 27.838). “If after a verdict or judgment it appears in any action that a different cause of action has been proved and should have been pleaded, a new count setting up the cause of action so proved may by leave of court be added to the declaration by amendment, and the verdict and judgment shall stand.” Court Eule Nó. 19,- §4 (1933). In furtherance of justice, trial courts should give -the statute of amendments a liberal construction. See Okulich v. Goldman, 239 Mich. 569. In Grant v. National Manufacturer & Plating Co., 258 Mich. 453, we said: “As a rule, the permission to amend rests wholly within the discretion of the trial court, and unless this discretion is abused, we will not interfere. This is true irrespective of whether the court refuses or permits the amendment.” In M. M. Gantz Co. v. Alexander, 258 Mich. 695, we said: “The right to permit amendments, in accordance with the statute, is vested in the sound judgment and discretion of the trial court. It aims to abolish *669 technical errors in proceedings and to have eases disposed of as nearly as possible in accordance with the substantial rights of the parties.” See, also, Johnson v. Fremont Canning Co., 270 Mich. 524. In Annis v. Reiser & Co., 209 Mich. 512, plaintiff brought suit on the theory of rescission of a fraudulent contract. During the trial plaintiff moved to amend his declaration and proceed on the theory of damages for fraud and deceit. The motion was. granted. The measure of damages was different under the original and amended declaration. "We there said: ‘ ‘ Granting that the allegations of the declaration as originally drawn were on the theory of rescission, it was afterwards amended to conform to the theory of damages. Had plaintiff persisted in his claim of right to recover under the theory of rescission and no amendment been made, undoubtedly defendants would have been entitled to a directed verdict, but as there was no rescission and the declaration was amended and proof made thereunder we see no reason for a directed verdict on this account. The thing sought to be recovered was the same after amendment as before, and both declarations depended upon substantially the same state of facts. It is true that the case outlined in the amended declaration is one of tort, but after setting forth the facts which constituted the basis of his claim he elected to recover in assumpsit as he had a right to do under section 12350, 3 Comp. Laws 1915.” The above case must be considered as an authority for permitting an amendment from an action for rescission of a contract to a tort action, where there is no showing of surprise or injustice. It is to be noted that under the pleadings defendant Anthony A. Lubinski claimed he was indebted to Andrew Musetti, Sr., for the materials furnished, *670 and we must assume that when the cause came before the pretrial docket no changes were made in his claims; but when the cause came on for trial, and after some testimony had been taken, defendant Anthony A. Lubinski claimed that he did not know to whom he was indebted for the materials. He testified as follows: “Q. And then when the materials were delivered, he (Musetti, Sr.) told you that you would have to pay the bills directly to the material people on the 10th of the month following delivery, that is right, isn’t it? “A. That is right. “Q. You got all this material from the Gratiot Lumber & Coal Company up to the time you were told, or up to the time you signed Exhibit % (purchase agreement), and you never made any complaint about the manner in which these delivery tickets were made out, did you? “A. No, sir. * * * “Q. Didn’t you consider you owed the Gratiot Lumber & Coal Company that money? “A. I assume I did, yes. “Q. And you assume now it is owing to the Gratiot Lumber & Coal Company, do you not? “A. That is right.” It appears that the first opportunity plaintiff company had to meet this new theory was during the trial of the cause. The only issue is whether Lubinskis are indebted to plaintiff company. Under the circumstances in this case, plaintiff was entitled to amend its pleading and proceed with a less stringent remedy. It was reversible error to deny plaintiff this privilege: The judgment is reversed, with costs to plaintiff. Starr, Wiest, Butzel, Bushnell, and Boyles, JJ., concurred with Sharpe, J.