*1 Doyle Kammebaad. hearing pending still has a before the civil right service board to determine his to reinstate- salary Admitting ment, since his dismissal. well-pleaded allegations disregarding and fact, opinions and therein, conclusions stated the dec- laration does not state for cause action. dismissing
The order the suit is but it affirmed, prejudice plaintiff’s right must hearing without ato city with the accordance charter con- supra, prej- Case, strued the Babcock and without plaintiff’s right, any, udice to if to reinstatement, or salary wrongfully for if be found it he was dis- charged-from position. exception, his With that judgment appellees. with costs to affirmed, Btjsh- J., and
Stabr, North, C. Wiest, Butzel, JJ., concurred. nell, Reid, Sharpe, MULTIPLEX MACHINERY CONCRETE Co. v. SAXER. op 1. ^Replevin Damages—Unpaid Balance Note —Chattel Mort- — gages —Foreclosure. unpaid balance given instalment property note repossessed under foreclosure of chattel re- is not coverable in an action it possessory since is a ac- tion, plaintiff’s damages being therein limited to the unlawful taking or detention of the which include com- pensation injury property, any for loss of use actual to, depreciation of, (3 value it' 14838). § Inadequacy intervention, law as Restatement, Contracts, see (c), (d), (e). [Ján. Damages—Unpaid Mort- Balance of Note —Chattel
2. Same — *2 gages. judgment for the replevin plaintiff cannot have In a of aetion thereof, and at the for the value property, or return of the damages detention measure of for the use as its same time chat- unpaid note and of balance thereof the amount right possession of the plaintiff’s on which tel 14838). Comp. 1929, (3 Laws property is founded § Damages—Tort-^Assumpsit. Same — 3. plaintiff join replevin a cannot a claim tres- In an aetion .of foreign out pass damages to such as arise ease on the assumpsit for detention, or in taking or unlawful of unlawful (3 1929, 14838). Comp. Laws balance due on a note § Purpose of Action —Possession. 4. Same — replevin is to recover the purpose the aetion of The of goods unlawfully detained. of Action. Action —Definition of Cause of 5. generally which understood be those Causes of aetion are recognized as the fact or combination of and often defined entitling party a to or to sustain an action. giving facts rise Actions — Statutes. Same —Joinder of 6. judicature act, joinder in authorizing provision of the The may many of aetion as have of causes one aetion joinder to the against defendant, does not refer actions actions, applicable to the to different but limited or to counts Comp. 1929, (3 Laws joinder of in one aetion causes of aetion 13962). § Underlying Recoupment Payment Note Same —Set-Off and — 7. in Full. recoupment shown replevin, action of cannot be set-off given underlying claimed be due on note to reduce balance except by purchaser-defendant where latter shows the note extinguished by payment in full. has been Remedy Adequacy Re- —Set-Off of Defendant’s 8. Same — coupment. adequate afford defendant an does not a The action of recoupment unliquidated way or remedy at law of set-off arising detention. out of an unlawful damages not Remedies —Statutes. 9. Same —Defendant^ State, statutory defendant and the Replevin is a judgment statute authorizes the court only as the have such can to render. Saxes, Co. Judgment for Defendant —Statutes.
10. Same — prevails a who in an statute allows defendant action of re- The property plevin judgment a of return its value and plaintiff’s or, reason of sustained detention if replevied plaintiff, judgment not was and delivered to (3 Comp. for costs Laws 14843, 14844, 14846). §§ Calendar —Transfer Causes. 11. right suit to have a law transferred to the side ap- court is restricted to such eases as those which it pears plaintiff’s on a motion that the action should have been may but commenced transfer be had on a defendant’s (3 motion as well 14008). Jury Waiver—Demand—Equity. — jury In civil cases a trial is deemed to be waived unless de- jury chancery cases trial manded and be obtained al- *3 though jury’s findings advisory only (Const. the 1908, art. §13; §14272). Replevin Scope Equity Jury. of 13. — Action —Transfer to — plaintiff sought Where relief not replevin in obtainable action it brought although and jury had defendant demanded trial he sought equity of inability also transfer cause to of because recoup damages for fraudulent misrepresentation, plaintiff’s claim that action was not equity transferable to was without rights merit where various issues as to and liabilities of the parties original under sales and mortgage contract chattel
may not in be decided such action. Subsequent 14. Events —Issuance of Writ. Same — replevin In validity an action of issues as of subsequent fore- mortgage of closure chattel of and removal out of rights the State not parties be determined as the of the by a action are fixed the situation the time the at writ was issued. Recoupment—Equity—Multiplicity 15. of Suits. Same — plaintiff sought of unpaid action wherein of balance by sought note secured chattel and defendant recoup- ment of fraud, equity jurisdiction, will take multiplicity adjustment suits, avoid a proper of to effect a of rights parties, bring complete and to about termi- a controversy. nation of the Remedy Equity Jurisdiction—Adequacy 16. of at Law. — Equity jurisdiction will remedy entertain where the law is not adequate, plain, and complete, but is difficult doubtful. Availability op Remedy Jurisdiction—Adequacy 17. Same — at Law. remedy legal be inad- Equity would will afford relief where equate immediately available. or not Adequate Rem- Obstacles 18. Same —Jurisdiction—Procedural edy at Law. jurisdiction may to remove to attain- Equity be invoked obstacles relief in an action at law where such ob- adequate ment of procedure. rules of interposed stacles are Remedy op at Law. Same —Jurisdiction—Effectiveness 19. remedy legal a is the criterion The mere existence legal remedy equity, interposing jurisdiction in but the both obtaining respect final- to its relief its modes of remedy equity must as effectual as which would relief be juris- circumstances or else the concurrent confer diction attaches. Jurisdiction—Multiplicity
20. Same — of Suits. theory saving multiplicity a for- The of suits as a equitable jurisdiction equitable is one suit is substituted judicial place proceedings means of all other kinds of controversy may finally which the entire settled. Jurisdiction—English Chancery 21. Same — Courts. jurisdiction equity in of courts of State coextensive jurisdiction powers judges of courts and chan- with the England. cery in Availability op Legal Remedy Efficiency Equita- Same — — Remedy. ble legal remedy is not available Where and. procedure efficient, is more or where the affords ad- law, vantages are not attainable at the court which *4 jurisdiction. concurrent has Applicability op Well 23. Same — Jurisdiction to Defendant as Plaintiff. as jurisdiction equity apply Principles governing invocation equitable equally relief as well as to to who seeks defendant jurisdiction. originally who invokes JJ., Wiest, Reid, dissenting. Sharpe, and Sub- Oakland; Doty from J. Appeal (Frank L.), 1944. mitted October No. 3, (Docket Calendar January No. Decided 42,826.) Machinery Co. v. Saser. Concrete by Multiplex Replevin, Com- against Joseph pany Saxer to obtain machinery. against Cross declaration defendant machinery damages plaintiff for caused failure of operate represented. dis- declaration Cross for transfer to missed on motion. Defendant moved equity ap- of court. Defendant side Motion denied. peals. Reversed and remanded.' plaintiff. Blade, for
Thomas E. H. Joseph Joseph B. Bedeenstein and Bede, J. de- fendant. (dissenting). J.
Reid, This is a action brought repossess conerete-block-making ma- chine of a terms chattel because payments. of default instalment an- Defendant claiming recoupment cognizable swered set-off and ain suitable action in a and law moved to court equity transfer the action to the side of the court permit him make defenses and to enable apply equity him to if his court should instalments, award them to him on the defaulted bring thus his contract out of default and defeat replevin action. The trial court denied defendant’s ap- motion to transfer to the side. Defendant peals Appellant from such denial. further claims (a) recoupment since neither set-off nor can be urged (the only right being a case issue possession) defendant the instant case does adequate remedy have an on the law side (b) jurisdiction court; can take where alleged, fraud is his brief but not in mo- tion to transfer he case' defendant claims by plaintiff’s representation was defrauded false that the machine 12- would both 8-inch make *5 Beports. independ- (c) in an blocks; and that defendant
inch upon non- law not obtain service the ent suit at could jurisdiction. in resident question bought Defendant the with machine plaintiff August appurtenances from 1941. On machinery using December after the 5, 1941, admittedly good three results about with months gave plain- making blocks, 8-inch concrete defendant ac- the before mentioned with tiff companying chattel calling payments on instalment note pay- plan. the Thereafter defaulted defendant July, April, May, 1942. De- ments due June setting declaration, answered fendant warranty that machine and ac- forth breach good out were new and would turn 8-inch cessories but machine 12-inch cement blocks he in the failed when tried make 12-inch blocks part of in November., latter October and 1941. With declaration defendant filed cross answer implied warranty, claiming damage to his breach of assumpsit. common counts and added business, by a This was attacked motion and cross declaration parties it ordered dis- the court consent both missed.
The left in the defense record breach warranty at law. which is actionable just know what of statements
We cannot now sort pleading if make in his the cause would defendant his No if different from answer. were transferred, pleading to be filed case trans- sworn is tendered ordered. the court is fer side defendant is 3 transfer statute relied on §14008 (Stat. §27.652). Anm repos- machinery appears has . It been some months sale, sessed, foreclosure sold de- claims Elmore, Plaintiff later taken Ohio. attorney of the foreclo- had notice his fendant and sure. *6 249
1945] Co. v. Saxer. he says that transfer to in Ms motion Defendant September 1942, the 25, about that on or advised is property place, later the sale took foreclosure beyond by plaintiff equipment removed were and jurisdiction the sale was and contends court of this legal plaintiff had no law and that void under the should right the sale therefore and to foreclose is an appears the defendant It further aside. be set MicMgan. doing corporation business not Ohio property having subject its corporation to was Such admits his Michigan and defendant attached in knowledge of Ohio The courts the foreclosure. as to open defendant. are to which defendant the breach
Plaintiff .denies begun properly and replevin suit was The claims. It only begun the court. the law side could be specific to obtain is the personal Brong, property. 44 Mich. 150, v. Corbitt might plaintiff liable do Damages for which Dearing Tube Water defense. constitute a (24 Thompson, L. R. 368 365, 156 Mich. Boiler Co. Comp. 748). [N. S.] Laws 3 also, See, A. §27.826). (Stat. Defendant Ann. subd. §14132, rightful entitled owner claims he is still possession. suit The issue in the right possession. damages exceed not to declaration claims
The
damages
specify
whether
but fails
$3,500
property,
wrongful
detention
claimed for
property,
damages
other cause.
or for some
property
damages
is re-
where the
compensation limited to a fair
covered must be
special
together
property,
with such
the use of the
necessarily accompanied
the detention,
property.
any
injury
Aber v.
to the
actual
Bratton,
also,
See,
cited). Michigan damages by reason of answer claims
Defendant’s machinery to function as war- the failure his claimed; amount fails to state the but ranted, that was the amount but did state cross declaration Apparently if defendant his consent. dismissed suitably pleadings, to amend his leave had obtained set off at least could have counterclaimed he fro prop- damages against claims his tanto proven. erly pleaded and opportunity slip attach the Defendant let therefore it while was still *7 legal his remedies. He sat the not make most did warning, plain- idly by, making protest while no or property, expense of of the the sale tiff incurred Michigan, storage in trans- and of for four months Ohio, besides what- to Elmore, fer may reconditioning prop- the been done have ever dilatory erty after After such several months’ use. subject inequitable plaintiff to it be to tactics, would expense at statement without least sworn further by of merit defendant. opinion Boyles have Mr.
We read the Justice conduct does not merit the and consider defendant’s opinion that favor would bestow. adequate has an
We conclude defendant law. petition denying for transfer order the should plaintiff.
be with costs to affirmed, concurred with J. J., Wiest, J., con- Sharpe, Reid, curred the result. agree denying I J. do not that the order Boyles, right have the case transferred to to the agree I
side the court should affirmed. can Nor adequate remedy defendant has at law, recoup the defendant could offset or dam- Co. v. Saxer. ages The ease he re- should in the suit. entry giving court of an order manded for jurisdiction of the case. replevin, repossess declaration inis
Plaintiff’s mortgage personal property a chattel pay had defaulted instalment which defendant claims that entire un ments. The declaration paid on the note and mort of instalments balance gage anof acceleration clause in default virtue is right mortgage; that under this in the chattel through is due elect that the entire amount accel “by eration virtue of the said exhibits clause note) (the and instalment and in chattel machinery equip addition the return of said plaintiff plaintiff, damaged ment has been further and additional sum of not to exceed $3,500.” concluding plaintiff judg its declaration claims property, ment for return of or the value there “and the to further and additional of dam of, ages sum $3,500 exceed and its costs any express by plain suit.” In the absence of claim damages arising tiff for out of the it detention, seeking judgment be inferred that on ac unpaid count of the accelerated balance of the instal *8 accomplished replevin ments. This cannot be action. in the Replevin possessory plain a and action, replevin tiff’s in a suit are limited to dam ages taking for the unlawful or detention, unlawful §14838 (Stat. or 3 both. Laws Ann. § 27.1836). damages may compensa Such include any property tion for injury loss use of the actual property (McGuire Galligan, the v. 357), Mich. Aber 453; v. Bratton, Mich. and for depreciation (Riley in value v. Littlefield, Mich. 22). plaintiff replevin judgment But in cannot have property, for the return of the or for the value the same thereof, time use as its measure of Michigan Reports. damages for the detention thereof the amount of the unpaid balance on the note and chattel plaintiff’s right possession property which of the plaintiff replevin A in is founded. cannot recover damages except such as arise out of the unlawful injury depreciation to or use, in detention, of the value question. plaintiff join Nor can a replevin trespass in an action in claim on the damages foreign case for to such as arise out of un taking assumpsit lawful or detention, unlawful or in for the balance due on a note. E. S. & Knowles Son Cavanaugh, 144 Mich. 260. Brewster Loud Supply Lumber Co. v. General Builders’ Co., 233 Mich. this court said: principal question
“The involved is whether, under the in in the case, circumstances the court erred permitting plaintiff to amend his declaration replevin by adding assumpsit. suit a count in * * * purpose replevin The of the action in is to goods unlawfully recover the detained. * * * plaintiff In the instant case the had no replevin. goods cause of action in were un- not lawfully detained the defendant. There could be plaintiff no unlawful conversion, and, therefore, the any part goods could not recover the value of replevin in that action. The failure of the has suit any question taken of the unlawful conversion out of the case. So that under the circumstances of this case could not add a count conver- sion to his declaration in suit re- goods it; cover value and if he could certainly he do that could not add a count in as- sumpsit. judicature provision act “There is no changed any adopted have this court that rules joinder practice counts
the
actions. Our attention
as to the
p.
section 432,
is called to
*9
Co. v.
253
Saxer.
judicature
chapter
applicable
8 of the
163,
part
act,*
reads as
of which
follows:
“
may
join
‘The
in one
at law or
action,
many
equity,
as
causes of action as
have
he
* * *
against
1915,
the defendant.’
Laws
§
†
are
to
those
“Causes of action
understood
he
generally recognized
often
and
giving
‘which
defined
to or en
the fact'or combination of
rise
facts
Village
titling party to sustain an action.’ Otto v.
a
Highland Park, 204
this defini
Mich. 74. With
readily appear that
section
tion in
it will
mind,
joinder of ac
of the statute
not refer to the
does
applicable
counts
to different actions.
or to
tions,
It is limited
joinder
language
of causes
its
to
not mean that one
of action in one action.
It does
assumpsit
may join
with cause
a cause of action
replevin;
4 of Circuit
of action in
nor does section
practice.”
permit
Court Rule No.
sought
re
declaration,
cross
defendant,
coup unliquidated damages
$12,000
aris
excess
warranty
ing
fitness
injury
out of a claimed breach
purposes, and for
the machine for certain
or loss of defendant’s
Plaintiff
business.
moved
declaration on
dismiss
off or
cross
set-
recoupment
cannot
allowed
the defendant
replevin.
an action
This court has so held.
Dearing
Thompson,
Boiler
Water
Co. v.
Tube
748);
[N.
(24
S.]
Mich. 365
L. R. A.
Rubin v. Galla
gher,
254 or re- of set-off and claim declaration’ cross ant’s by and tbe order, coupment court dismissed was tbe case to tbe to transfer a motion filed defendant equity was denied. motion wbicb court, side of the con- denying is now tbe transfer order This appeal. on this sideration by urged tbe transfer grounds for defendant Tbe defenses are bis that court case to tbe of tbe inter- equitable cannot nature which of an not does defendant posed suit, in tbe remedy adequate addi- Also, law. as at an have jurisdiction, defend- tbe for tional pending replevin suit was tbe that'while ant claims mortgage and the chattel foreclosed tbe beyond jurisdic- tbe property to removed tbe Ohio was defendant claims wbicb action court, of tbe tion void, prop- tbe should be set aside and that the sale jurisdiction erty tbe court. to tbe returned agreement defendant’s contention are in with We adequate remedy not have that defendant does way by of set-off or re- law in the action damages arising unliquidated coupment not out of tbe unlawful detention. early this as 1890 court held:
As ‘ ‘ statutory Replevin ais State, judgment defendant can have such as tbe ” tbe court to render. statute authorizes Bateman v. Blake, Mich. 227, replevin prevails, Where tbe defendant judgment
statute allows for tbe defendant of return property, property of tbe or tbe value of tbe re- plevied sustained him reason of by plaintiff (3 Comp. tbe detention 1929, §§ §§ [Stat. 27.1842]), Ann. 27.1841, or replevied if the was delivered plaintiff, prevails tbe a defendant who can tbe suit Co. v. Saxer.' only. Comp. judgment for Laws 1929, take costs §27.1844). (Stat. Ann. Woolaver, 46 Mich. defend- Eldred replevin'by attempted action to defeat an ant claiming damages injury yoke oxen, for agreement although had been no there damage plaintiff in re- amount of the plevin agreed pay damage. had Justice writing holding court that the de- *11 Cooley, replevin fense not available in a said: action, was (the agreement plaintiff) such an he “Without use, and be could not be liable for the he could any damage action held for some them form of in tort.” Equipment Acceptance Corp. In Theatre Bet ap replevin man, 266 Mich. 22, the defendant pealed judgment damages a from in her favor for property, claiming of dam for unlawful the ages sought her allowed were insufficient. She as damages property value of the the other affected replevin, property the of unlawful value the to her going earnings, aas cost to the business, reinstall equipment, replevied and interest on value of the the property. unliquidated effect, In her claim was for damages. denying The court in such claims said (p. 26): damages
“Defendant effect seeks for a conver- sion of her entire business. “Special damages must be such as the im consequences talcing.”
mediate
the
unlawful
”
Gaar,
Co.,
Woods v.
Scott &
Plaintiff recover, cannot in the the case, damages apparently sought its declaration; the defendant, on law side of the cannot offset court, damages breach war- recoup for his claimed or ranty original defend- sale. The contract of in the plaintiff is not denied—that it ant asserts —and is a gan, process doing corporation in Michi- foreign business service of cannot obtain that defendant in order State, in this may in the determined for be his claim Plaintiff has of this State. courts it has foreclosure, and under might seek defendant removed to While been to transfer Ohio. or be- court, case to Federal instant gin damages in the Federal on the court, suit might diversity citizenship, he con- be many legal against as recov- fronted with obstacles ery present. might are now Defendant sue for competent jurisdiction damages in a court of in Ohio corporation where he is domiciled. that event delay with the hazards of would confronted necessity seeking way probable and the some judgment against ex- execution under offset Ohio Michigan judgment present ecution replevin case. *12 providing for
Plaintiff insists that
the statute
equity
transfer of law
cases
side
the court
sought by
not authorize the
now
does
transfer
plaintiff’s
The
defendant.
substance of
claim that
is
brought only
is
action which can be
on
the law side of the
it
court, therefore
cannot be
transferred. Under the circumstances,
this is not
persuasive argument,
inasmuch as
now
property through mortgage
claims
of the
upheld,
if
claim,
foreclosure
plevin
the re-
makes
damages only.
applicable
action one for
part
§
(3 Comp.
of the statute
1929,
[Stat.
27.652])
Ann.
reads as follows:
appear
“If it
that an action
on the
commenced
law
of the
should
brought
side
court
have been
Co. v.
Saxer.
equity,
prop-
it shall be forthwith transferred to the
proceeded
er
with
such
with,
side
be there
pleadings
in the
as shall be essential.”
alteration
Youngs,
Courtney
In
202 Mich.
this
384, 396,
v.
judgment
remanding
reversing
court
proceedings,
further
motion
of its own
instructed
lower court
transfer
same to the
City
side of the
And in
court.
Iron Mountain v.
Waterworks,
Iron Mountain
Mich. this ques 127, 134, court, said: tion, sought imply “It that the transfer of a law depends suit upon to the side the court appears
whether it that the action should have been equity, .only plaintiff may commenced in and that application. may make such Transfer had de fendant’s motion and is not limited to a case where plaintiff applies therefor. Von Ho ene Barber, v.
Mich. 538.”
In the case at bar in the lower court it de- was the plaintiff, fendant, who filed a demand for jury jury trial. In civil trial cases, is deemed to be (Const. § 13), waived unless demanded [1908], art. 2, chancery jury and in (3 cases trial be obtained §14272 [Stat. §27.1001]), Laws Ann. although findings jury advisory only (Detroit Blodgett, National Bank v. 115 Mich. Railway 173; Detroit United Smith, Mich. 235). *13 We find plaintiff. no merit in this claim present brought situation was about as the re- plaintiff’s sult of motion to dismiss defendant’s recoupment, set-off declaration, claim of cross in a issue could be tried that such on the joined replevin now result, As a issues action. replevin are narrowed down whether action in the plaintiff property,
is entitled to rights for unlawful detention. The and and liabilities of the
parties
original
under the
sales
adjudicated
replevin
contract cannot be
Nor can the
in the
case.
validity
plaintiff’s
foreclosure
the chattel
and removal of the
adjudicated
replevin
Ohio be
case. As to that,
upon
the issue
they
is determined
the facts as
beginning
were at the
suit. Cass v. Gun
nison,
The fact there was a at law preclude contract has been held not to an election of complete, which was much more embracing what would otherwise have been numer- possible equita- necessity ous at law, suits with a finally. ble relief (Mich.) v. Rice, Carroll Walk. Ch. 373; Olson Morrison, Mich. 395. *14 Co. v. Saxer. complications, presents such such a case
Where
questions
disposition
a
at
and such
law,
obstacles
equity
peculiar
make it
as to
manifest
a court
proper
of law
not so deal with it as to effect a
could
adjustment
bring
complete
termination
about a
equity
jurisdiction. Wallace
has
contention,
of
Harris,
v.
Equity
relief,
will afford
where
immediately
inadequate or not
available.
would be
v, Fitzsimons,
the law is other conclusion would system jurisprudence show our a failure, but a delusion and a snare. Justice can alone chancery, considered in a court of can never be tolerated and technicalities except to obtain and not to de- stroy greater equity always it, and the should be al- prevail.” Lodge lowed to Grand the Ancient Order United Workmen Child, Mich. principles governing right to invoke the jurisdiction of a court of should be held to apply equally to a defendant who seeks re- lief the originally as well as to the who invokes jurisdiction. In the case at bar the defendant adequate does order not have an law, denying the transfer to the side of the court must be set aside and tlie case remanded for transfer pleadings and such proceed- further ings may fairly present the issues between the parties. appellant. Costs to Starr, C. J., and North, Butzel, and Bushnell, JJ., concurred with Boyles, J.