Feiertag v. Feiertag

| Mich. | May 2, 1890

Grant, J.

For a statement of this case, we refer to Feiertag v. Feiertag, 73 Mich. 297" court="Mich." date_filed="1889-01-18" href="https://app.midpage.ai/document/feiertag-v-feiertag-7933884?utm_source=webapp" opinion_id="7933884">73 Mich. 297. This Court then held that there was sufficient testimony to go to the jury under the count for money had and received; but the case was reversed for errors, and a new trial ordered, with a suggestion to the plaintiff's attorney to apply to the court for leave to amend his bill of particulars.

Instead of amending his bill of particulars, the attorney obtained leave and amended his declaration, averring that the defendant was indebted to the plaintiff in the sum of $2,770 for money paid by the plaintiff to the defendant, at her request, at various times between November 30, 1881, and April 4, 1887, to wit, 277 weeks at $10 per week; and in a like sum of money then and there received by the defendant for the use of the plaintiff from, to wit, November 30, 1881, up to and including April 4, 1887, in sums ranging from $3.50 to $18 per week, $2,770. No bill of particulars was demanded under the amended declaration, nor was one necessary; for, under the circumstances, plaintiff's claim could not have been more definitely set forth than it was in the declaration. There is no force, therefore, in the defendant's objection that the bill of particulars filed under the original declaration was not amended.

It appears beyond dispute that the plaintiff was engaged in the business of dress-making during all the time covered by the declaration, and that the defendant received her earnings. The disputed questions of fact were the amount of her earnings, the agreement under which the defendant received them, and the periodical settlements which the defendant claims were made. All these questions were for the determination of the jury, and were properly submitted to them. No complaint is made of the charge of the court, except that it should have instructed the jury to find a verdict for defendant. In view of the full discussion of the case upon the former hearing, further comment here is unnecessary.

Judgment affirmed.

The other Justices concurred.