112 Mich. 458 | Mich. | 1897
The plaintiff was the owner of two lots and a house on Butterworth avenue, and three vacant lots on Gunnison street, in Grand Rapids. Upon, these lots was a quantity of valuable gravel, which the defend
Balance due for gravel sold defendants............. $74 00
Damage done to dwelling house by defendants in moving and lowering same...................... 45 00
Damage done to lots by defendants in lowering same below the street and alley grade, and in leaving the surface of same irregular and uneven________ 40 00
For sidewalk-------------------------------....... 15 00
$174 00
Defendants pleaded the general issue, and gave notice of set-off, filing a bill of particulars of the same.
The claim of the plaintiff on the trial was that defendants, where they found a vein or layer of gravel, would excavate to great depth, and, where no gravel was found, would not work it, so that it left the lot uneven and hilly; that, in moving and resetting the house, the work was
The suit was commenced in justice’s court, and there tried, and on appeal to the circuit, before a jury, a verdict was rendered in favor of the plaintiff for the sum of $128.
1. Defendants contend that no evidence was admissible as to the damages to the Gunnison-street lots, as they are not mentioned in the, declaration and bill of particulars. The declaration in justice’s court was oral, and is not to be very strictly construed; but, whatever defects there may have been in that regard, we think the bill of particulars sufficiently specific to enable the plaintiff to recover on the Gunnison-street lots.
2. It is contended that no evidence was produced by the plaintiff in support of the item in her bill of particulars as “balance due for gravel sold defendants.” We think there was some evidence to go to the jury on that question.
3. It is contended that, in regard to the filling of the lots, the measure of damages is not the value of the material it would take to fill them up even with the alley, as graded, but the depreciated value of the property, if any. This contention cannot be sustained. Defendants had agreed by their contract to refill these lots, or, rather, to
4. But defendants contend that there is no item in the bill of particulars setting, forth anything but damage to the lots by reason of lowering them below the alley and street level. We think the pleadings were specific enough to allow a recovery for the cost of leveling the lots.
5. It is contended further that the plaintiff received payment in full for all gravel taken from these lots, and now claims damages for taking it below a certain grade; that she cannot accept payment in full for gravel taken below grade, and also claim damages for not refilling, unless she relies on the contract to refill, and that, if she does so rely, she fails, because she has neither declared on that latter contract, nor included a claim therefor in her bill of particulars. We think this claim is covered by the third item of the bill of particulars, and that defendants cannot have been taken by surprise upon the trial by the demand made.
6. It is contended that the declaration and bill of particulars do not cover the Gunnison-street lots at- all, as no allegation of said oral contract, or any breach thereof, is made. As we have said upon the other claim, the third item of plaintiff’s bill of particulars must have referred to the Gunnison-street lots as well as to the others. It is general in its items, and charges damages for lowering the lots below the street and alley, and leaving the surface irregular and uneven. There was evidence given by the plaintiff which tended to support plaintiff’s several claims, and we think the court properly submitted them for the consideration of the jury.
7. One further claim is made. It appears that one
From a full examination of the record, we are satisfied that the case was fairly tried and submitted, and the judgment must be affirmed.