92 Mich. 461 | Mich. | 1892
The plaintiff sued the defendant in justice’s court in “a plea of trespass on the case, to his damage $300 or under.” On the return-day the parties appeared, and the plaintiff declared against the defendant orally—
“In a plea of trespass on the case upon the common counts, and especially on a certain contract to rent a house, etc. (see Exhibit A), and claims damages one hundred dollars.”
The above is taken from the justice’s return. Exhibit A is as follows:
“Specially.
“On a certain contract or agreement made and executed on, to wit, the — day of-, 1889, wherein and whereby said plaintiff agreed to execute a lease to and said defendant to accept a lease on to wit, the 7th day of August, A. D. 1890, said lease to be executed for one year, at the annual rental of one hundred and twenty dollars, payable in monthly installments of ten dollars each, which said lease was ready and willing to be executed by said plaintiff, and which said lease said defendant refused to accept, and still does refuse, to plaintiff’s damage one hundred .dollars.”
The defendant pleaded the general issue, and demanded the plaintiff’s bill of particulars. The court ordered the
The circuit court was in error. The demand for a bill of particulars applied to Exhibit -'A as well as to the common counts. There was no intelligent or proper statement of the cause of action in 'Exhibit A. What property the lease was to cover does not appear. The defendant was entitled to know this to make his defense; and, if not stated in a bill of particulars, the declaration should have been amended so as to apprise the defendant of the precise claim against him.
It is claimed the justice had no right to dismiss the case, and discharge the jury which had been impaneled to try the cause; that the declaration, if defective, should have been demurred to. When the plaintiff refused to file a bill of particulars, he could give no evidence in the cause, and 'such refusal was a virtual discontinuance of his suit. How. Stat. § 6880; Peterson v. Tilden, 44 Mich. 169.
The case should have been dismissed when the motion was first made. The fact that the defendant consented to adjournments afterwards, or that he had pleaded to the declaration, or joined in striking the jury, did not preclude him from making the objection to the reception
It is unnecessary to notice the other points raised on the argument.
The judgment of the circuit court is reversed, with costs of this Court and the circuit to the defendant.
