Docket No. 93, Calendar No. 35,585. | Mich. | Jun 1, 1931
From an order dismissing garnishment plaintiff has appealed. The declaration is in substance that plaintiff, because of fraud and conspiracy of defendants, was induced to part with real property of the value of $5,000, and money, $385, in the total sum of $5,385, in exchange for a vendor's interest in a land contract covering mortgaged property, and that such interest was wholly worthless and fraudulent. The declaration is in affirmance of the transaction, and in assumpsit upon waiver of the tort. The affidavit for writ of garnishment is that the indebtedness on "such contract" is the sum of $5,500, etc. The dismissal is upon the ground that the action arises in tort, not upon contract, and is for an unliquidated amount, and, therefore, will not support garnishment.
The statute, 3 Comp. Laws 1929, § 14857, so far as here important, permits garnishment in personal actions arising upon contract. The indebtedness must be such that it may be stated in the affidavit to be due on contract and in a given amount.
This action in assumpsit is upon waiver of the tort, as provided by 3 Comp. Laws 1929, § 14007. Plaintiff to waive tort and sue in assumpsit must set up special count; the common counts are not sufficient. Billig v. Goodrich,
Counsel for appellee assumes, from what was said inBryant Detwiler Co. v. Peterman,
Assumpsit may be upon an express contract or promise, or for nonperformance of an oral or simple written contract, or it may be a general assumpsit upon a promise or contract implied by law. At common law promises were implied by law, and one might waive tort and sue in assumpsit in certain cases, as where the tort arose out of contract relations or consisted of a conversion of plaintiff's property into money. Plefka v.Railway,
A promise or contract is implied by law upon waiver of tort at common law and equally so upon waiver of tort by statute. The form of assumpsit declaration used is not important, respecting garnishment. It is important that the action shall arise upon contract. The action before us is one arising upon a contract implied by law.
Nearly all the indebtedness (it is urged in its entirety), here claimed, cannot be stated on oath and in a given amount within the meaning of the statute, for the value of the real property conveyed cannot be determined "by a standard referable to the contract itself," but must rest largely in opinion.Roelofson v. Hatch,
It follows that the principal suit does not support the garnishment. I Stevens, Mich. Practice, p. 148. This decides the only matter presented.
Affirmed.
BUTZEL, C.J., and WIEST, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.