People ex rel. Holmes v. Cotteral

115 Mich. 43 | Mich. | 1897

Lead Opinion

Grant, J.

(after stating the facts). Three objections are raised against the judgment:

1. It is urged that the execution of the bond and contract was not sufficiently proven. A sufficient reply to this is that these instruments were declared upon, and their contents substantially set forth in the declaration. No affidavit was filed denying their execution. Under Cir. Ct. Pule 8, plaintiffs were not required to prove their execution.

2. One of the plaintiffs testified that they “furnished the material, upon the order of Cotteral '& Co., used in the high-school building; that the order came to us by telephone, and the goods were delivered at the high-school building.” This was sufficient evidence both of sale and delivery, in the absence of any testimony to the contrary. There being no evidence to the contrary, the court correctly held that the sale and delivery were proven.

3. The main contention is that the justice of the peace had no jurisdiction to try the case, because the penalty of the bond was in excess of his jurisdiction. It is insisted that the judgment in such cases should be for the penalty of the bond, to be discharged by payment of damages sustained by the breach thereof. Defendants rely, to support this, upon Wayne Probate Judge v. Dean, 52 Mich. 387; Bishop v. Freeman, 42 Mich. 533; Gray v. Stafford, 52 Mich. 497. Plaintiffs insist that the case is ruled by Montgomery v. Martin, 104 Mich. 390. The summons was in assumpsit, and the declaration sets forth the contract and bond, neglect of Cotteral & Co. to pay, and claims damages to the amount of $500. The object of this statute is to protect the interests of individual laborers and material men, and to secure to each a remedy upon this bond when the contractors have neglected to pay. Section 3 (2 How. Stat. § 8411c) authorizes the prosecution of the bond “by any person, firm, or corporation to whom any money shall be due and payable on account of having performed any labor or furnished any materials in the erection, repairing, or ornamenting of such building.” Section 1 (3 How. Stat. § 8411a) requires “sufficient security by bond for the payment by the contractor and all sub-contractors for all labor performed or materials furnished,” etc. While this statute does not expressly authorize an action of assumpsit, as did the statute involved in Montgomery v. Martin, yet we are of the opinion that its language is broad enough to authorize an action of assumpsit, and recovery to be had for the actual amount due to the laborers and material men. This question does not appear to have been raised in any former suits brought under this statute. In Board of Education of Detroit v. Grant, 107 Mich. 151, the common-law practice appears to have been followed in entering the judgment, which was for the penal sum of the bond, and awarding damages for the breach. In People v. Powers, 108 Mich. 339, the other practice was followed, and judgment entered as in an action of assumpsit for the materials furnished. The declarations were substantially the same as in the present case. The legislature could not have intended that every laborer,'whose claim is usually small in amount, should be compelled to bring his suit in the circuit courts, rather than in the justices’ courts, where speedy trials can be had.

’ Judgment affirmed.

The other Justices concurred.

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Rehearing

ON APPLICATION FOR REHEARING.

Per Curiam.

A rehearing is asked in this case for several reasons, but one of which we need to notice. This suit was commenced in justice’s court, and technically we were in error in saying that, under Cir. Ct. Rule 8, plaintiffs were not required to prove the execution of the bond. Under the statute, it was necessary to produce and file the bond with the justice in order to avoid proof of its execution. 2 How. Stat. § 6928. If, however, it be conceded that the opinion in this regard was erroneous, still a rehearing should not be granted, because the record shows that there was sufficient proof of the execution of the bond. The other reasons stated in the motion were fully argued and considered in the former opinion, and we decline now to review them. In this connection, we call attention to Brown v. Brown, 64 Mich. 82, which contains a clear statement of the reasons for revoking decisions upon motions for rehearing.

Eehearing denied.