Applebaum v. Goldman

Ostrander, J. (after stating the facts). The articles claimed to have been sold and paid for, but not delivered, were part of a larger quantity, all being sold together for a lump sum. The suit is not' brought to recover any specific or proportional part of the purchase money which was paid, but to recover the value of the undelivered goods. It is in affirmance of the contract. The meaning of the common counts in assumpsit has been in modern times rather enlarged than restricted, but none of them is calculated to apprise the defendant of the nature of the plaintiff’s demand in this case, and under none of them is plaintiff entitled to recover. Pierson v. Spaulding, 61 Mich. 90, 94. See 2 Stevens’ Michigan Practice, §§ 322-331, and notes, where the decisions of this court are collected. Pleadings in justice’s court, whether oral or written, are treated with great liberality, and it is the general rule that a declaration good in justice’s court is good on appeal. Lynch v. Craney, 95 Mich. 199; Bradshaw v. McLoughlin, 39 Mich. 480; Soper v. Mills, 50 Mich. 75; Daniels v. Clegg, 28 Mich. 32, 46. It has been [374] intimated, too, that the bill of particulars may be referred to to amplify or make certain a declaration in justice’s court. Nugent v. Teachout, 67 Mich. 571; Davis v. Gerber, 69 Mich. 246; Bush v. Brooks, 70 Mich. 446; but in each of these, as in other like cases, it was held that a recovery could be had under the common counts. A bill of particulars is not a pleading in any court. It may restrict, but cannot enlarge, the scope of the recovery permissible under the declaration, and the issue made by the pleadings is not changed by its amendment. Cicotte v. County of Wayne, 44 Mich. 173; Weston v. County of Luce, 102 Mich. 528. It is said that the declaration in the case at bar is special, that the indorsement upon the file is notice of this; that in any event the defendant was apprised of the issue to be tried and tried it in justice’s court without objection. In appeals from justice’s court the return of the justice is the record from which the nature of the proceedings in justice’s court is determined, when the pleadings are oral. The practice does not permit the return to be amended, after verdict, by stipulation of the parties, although such a stipulation, brought upon the record, might perhaps in some cases be treated as an admission. But it is a sufficient answer to the contention of the appellee to say that it does not appear from the return, from the docket entries, or from the indorsements referred to, that the declaration was, or was intended to be, special. It cannot be said, as matter of law, that the issue tried in justice’s court was the same issue tried in the circuit court. We have no doubt that it was, in fact, the same issue. Whether the objections made at the circuit were also made in justice’s court, we cannot know. Much as we regret the situation, we have no alternative except either to refuse to apply settled rules or to reverse the judgment. It is reversed; and a new trial granted. Montgomery, Hooker, Moore, and McAlvay, JJ., concurred.