Wilcox v. Toledo & Ann Arbor Railroad

Cooley, 4. This case had its origin in justice’s court, where the railroad company brought suit upon the following paper writing as its sole cause of action: “$300. Milan, Michigan, August 21, 1871. For the purpose of promoting and aiding the construction of the Toledo, Ann Arbor & Northern Railroad, and in consideration of the benefits to be derived therefrom, I do hereby pledge and agree to pay to the order of the Toledo, Ann Arbor & Northern Railroad Company the sum of three hundred dollars in installments of twenty per cent, on each eight miles of iron laid on the line of said road, except the last installment, which shall be payable on the ironing of the said road from the State line to Ann Arbor, and upon the further condition that said road shall be built within one-half -mile of the Whiting hotel in the village of Milan. [Signed] A. F. Wilcox.” Endorsed on the back, “E. D. Ehnne, Assignee.” The judgment was removed to the circuit court by certiorari, the plaintiff in error assigning six .errors. The first three of these go to the- order in which-evidence was admitted in justice’s court. As the order was discretionary with the justice, these assignments of error need not be further noticed. The others were as follows: • “ 4. That said justice erred in admitting any evidence of an assignment or assignments under plaintiff’s declaration upon said special contract, which was not transferable except by assignment, since no assignment was suggested or averred in said declaration. 5. That said justice erred in admitting said contract declared upon in evidence, there appearing upon the face to be no privity of contract between plaintiff and defendant, since defendant was apprised neither by suggestion or averment that plaintiff obtained as assignee, and because there was no averment and no evidence of ownership by plaintiff of said contract. — 586 — 6. That said justice erred in denying defendant’s motion to non-suit the plaintiff for the variance between the cause of action set forth in his declaration and his proofs upon the trial.” The declaration was oral, and was entered by the justice on his docket as follows: “ On the common counts in assumpsit, and on note or contract, now here filed as a part of the declaration, and claims damages three hundred dollars.” The plaintiff also notified defendant that the paper writing was the sole cause of action. The defense is entered as follows: “ The defendant demands trial of the matter set forth in the plaintiff’s declaration, and gives notice that he will show, under his plea of the general issue, a failure -of consideration in this, to-wit: That the said contract declared on, if performed at all, on the part of the promisee, was not performed within a reasonable time, by reason of which the defendant received no benefit on its performance, in this, to-wit: At the date of said contract defendant was owner of and possessed of lands of great value, to-wit, of the value of five thousand dollars, which said lands it was contemplated by said contract would, by its performance within a reasonable time, be benefited and rendered of greater value to defendant, to-wit, by the performance of the promises on the part of said promisee. And by reason of the delay in the performance on the part of the said promisee said lands were not increased in value, and said defendant was not benefited.” There was no denial under oath, by the defendant, of the execution of the paper writing, and therefore under the law it was admitted. On the trial, the plaintiff proved by one Crane that the Toledo, Ann Arbor & Northern Bailroad Company was thrown into bankruptcy on his petition August 13, 1875; that E. D. Kinne was appointed assignee thereof, and as such sold the assets of the company, including the paper sued upon, and that witness became the purchaser of said assets, including the writing sued upon, and that Kinne endorsed his name as assignee upon such writing. Plaintiff also proved a deed from said Kinne, — 587 — as assignee in bankruptcy of said railroad company to said Crane of the real estate, property and franchises of said company, including among other things about $40,000 in promises to pay money, conditioned upon the laying of the iron of the road-bed, which deed bore date October 6, 1875. Also a deed from said Crane to James M. Ashley of the same real estate, property and franchises bearing date June 26,1877. The foregoing evidence was objected to for irrelevancy, and also because Kinne’s title as assignee was not proved. This last objection was obviated afterwards by record evidence. Plaintiff also put in evidence an authenticated copy of the declaration of incorporation of the Toledo & Ann Arbor Railroad Company, filed in the office of the Secretary of State November 23, 1877, and proved by James M. Ashley, Jr., that this company had fully completed and ironed the road from Toledo to Ann Arbor, and was operating it. Also by another witness that the completed road runs within a hundred rods of the Whiting hotel in Milan. Also that demand of payment had been made of defendant, which he had refused to make. The writing was then put in evidence, and plaintiff rested. Defendant then moved for a non-suit on the following grounds: “1. That the declaration does not allege any assignment of the instrument declared on, and the evidence shows its right to recover as assignee only, if it shows right to recover at all. 2. That plaintiff’s declaration does not aver an assignment from the Toledo, Ann Arbor & Northern Railroad Company, to the plaintiff, or to its assignor, and the evidence establishes its right to recover only under such assignment or assignments.” The third was substantially the same as the second. The justice denied the motion, and defendant offering no evidence the plaintiff had judgment. Other objections were made in this court, but these were all to which the attention of the circuit court was called, and we can consider no others. The fourth and sixth assignments of error cover the — 588 — same ground as the defendant’s motion for a nonsuit before the justice, and they go no further. Their complaint is that the plaintiff was allowed to recover as assignee, without having alleged an assignment in his declaration. The complaint is therefore to the form of the plaintiff’s pleading. It is no new thing to have an objection of this sort to the pleadings in justices’ courts raised, before us. As the proceedings in those courts are commonly managed by parties unlearned in the law, defects in their allegations, when tested by the rules of art, are to be expected in almost every case which is at all complicated. If every such objection were disregarded, pleadings in justices’ courts would, in effect, be dispensed with. Every plaintiff might allege as much or as little as he pleased, and recover without regard to his allegations. If every one were sustained which would be good if made to pleadings in courts of record, the parties in justices’ courts would be driven to the employment of legal assistance in every case, and these courts, which are intended for the easy and inexpensive redress of wrongs not of great magnitude, would cease to accomplish their purpose. This court has adopted neither the one course nor the other. It has required the plaintiff in justices’ court to apprise the defendant fairly of the cause of action relied upon, but when this has been done, the court has refused to regard formalities or technicalities. The object of the declaration is fully accomplished when the defendant is fairly apprised by it of the grounds of the plaintiff’s claim, so that he need be under no misapprehension as to what matters are to be litigated on the trial. Hurtford v. Holmes 3 Mich. 460; Daniels v. Clegg 28 Mich. 32. Does the declaration in this case accomplish this purpose ? It certainly informs the defendant what he is ¡sued upon. The contract is recited, and defendant is ¡notified that claim is made against him upon it, and upon nothing else. The contract itself specifies the conditions 'of liability, so that defendant knows there can — 589 — be no recovery.unless performance of these is proved.. It is said the declaration does not count upon an assignment. But it counts upon a promise made to another, and upon -which there could be no recovery except upon the proof of an assignment. The very claim to recover upon the paper was a claim as assignee, for it was only as assignee that plaintiff could have a right to it. . Moreover, the paper was made payable to the railroad company or order, and there was an indorsement upon it by E. D. Kinne, as assignee, which fairly notified the defendant that Mr. Kinne claimed to have become entitled in some manner to order the payment to be made to a transferee. It is true this indorsement might have been more formally made; it might and ought to have assumed the form of an assignment, with such recitals as would have shown Mr. Kinne’s authority; but the question now is whether the defendant was thrown off his guard or misled by any defects, and not whether the pleadings might have' been made more perfect. We must judge of this upon all the facts, ■ and not upon the face of the papers alone. What the defendant ought to do in every case in which the declaration is supposed to be fatally defective, is to demur, and thereby bring the defect at once to the attention of the court, before parties have been put to trouble and expense in preparing for trial. No doubt he has a legal right to abstain from doing this, when the defects, in substance, are such as cannot by any intendment be supplied or overlooked, but this course is not conducive to justice, and courts will not countenance it any farther than they may feel compelled to do so. When th¿ defendant fails to demur, he tacitly concedes the sufficiency of the declaration, and the court will hold him to this concession, whenever this can be done without probable injustice. There was no demurrer in this case. When the.evidence was put in, it appeared that Mr. Kinne was assignee in bankruptcy.of the railroad company, and as such had — 590 — a right to assign the paper writing. Now a fact bo notorious as must-be the bankruptcy of a railroad company, we are not at liberty to suppose was unknown to one of its debtors. It is the most reasonable inference in the world that defendant was familiar with the facts, and that it was because he knew them that he refrained from demanding more perfect pleadings. It is the duty of the court to draw this inference, and to act upon it under the circumstances. The fifth assignment of error is somewhat broader than the others. It complains of the admission of the paper writing in evidence, “there appearing upon the face to be no privity of contract between the plaintiff and defendant, since defendant was apprised, neither by suggestion or an averment, that plaintiff obtained as assignee, and because there was no averment and no evidence of ownership by plaintiff of said contract.” Here is the same objection to the declaration, but there is also the further objection that plaintiff had not shown its ownership by evidence. It has already been stated that there was a formal assignment by deed from Kinne as assignee to Crane, and from Crane to Ashley. The evidence of the assignment from Ashley to the plaintiff is to- be found in the certificate of organization oí the plaintiff as a corporation, which is signed by Ashley, and expressly declares that all the assets of the bankrupt corporation, so as aforesaid assigned to him, including the $40,000 conditional promises, “ are declared to be and hereby become ” the property of the new company. It can scarcely be pretended that Ashley, after this, could claim them. But it is objected in this court that the plaintiff was never lawfully and legally organized. It was certainly organized, went on and completed the road, was operating it at the time the suit was tried, and still is operating it, so far as we know. If there was any usurpation of franchises here, the State should be left to complain of it. Swartwout v. Michigan etc. R. R. Co. 24 Mich. 389. There — 591 — was no pretense in the court below that plaintiff, as successor of the original company, had not complied with the conditions of the promise. In our opinion the plaintiff in error has failed to point out any error in the rulings of the justice of the peace, and therefore the affirmance of the justice’s judgment by the circuit court must be affirmed with costs. Marston, C. J., and Graves, J., concurred.