44 Mich. 538 | Mich. | 1880
The circuit judge ruled, against objection, that the declaration was sufficient for the defendant in error to prove a case against the corporation under the act “ to provide for the protection of laborers and persons furnishing material for the construction and repairing of railroads in this State.” The statute is compiled as §§ 2393, 2391, 2395. The ruling was erroneous. The declaration consisted of the common counts; two being repeated with allusions, and nothing more, to the statute, with an added statement of the plaintiff’s title by assignment.
A party must set forth his case if he have one, and where his title to sue is statutory and the right of action depends on a special construction of facts defined in the statute, the declaration, if left to the reasons of the common law, must aver the existence of such facts.’ Unless this is done the defendant may insist that the cause of action relied on is not
So long as the claims preserve their original character of demands for labor and materials, and the sole change is one of ownership, no reason is perceived for denying to the new owner, although he may have become such owner by assignment, the right to enforce the demands against the corporation in as ample a manner as the first owner might have done. A contrary construction would often prove very embarrassing, and in certain cases would defeat the purpose of the statute. In case of the first owner’s death, the right would be determined, and possibly-also in cases of insolvency and bankruptcy.
The “ protection ” provided for is confined to “ laborers for and persons furnishing materials to contractors and "subcontractors.” A distinction is clearly marked between those who contract for labor and materials and the persons who actually perform labor and actually furnish materials. The
The circuit judge permitted the introduction of certain papers which a sub-contractor had issued to laborers as tokens of their service. They are spoken of as time-checks. Their admission against objection was error. According to the record they were hearsay and not evidence against the company.
The suggestion that the road belonged to Bancroft
The case calls for nothing more. The judgment must be reversed with costs and a new trial granted.
It was admitted in the case that Bancroft was ostensibly the contractor for building the entire line of • defendant’s road.