Van Vranken v. Gartner

85 Mich. 140 | Mich. | 1891

Per Curiam.

This is an application for a mandamus to compel the circuit judge to vacate an order requiring the plaintiffs to furnish to defendant a hill of particulars of their demand.

The action is assumpsit, and the declaration is special, and sets up a contract between plaintiffs and the Union News Company of New York, by which, for $35 a month, defendant would distribute a paper published by plaintiffs, called “ The Daily Hotel Kegister,” on 11 specified trains running into Detroit daily, Sundays excepted; that the undertaking to publish the Register was a new one, and depended upon the advertising patronage of the business public for its financial success; that, based upon the contract with defendant for the distribution of the Register, plaintiffs entered into contracts for advertising. They printed the paper, and defendant commenced the distribution, but after a short time refused to further carry out the contract, by which refusal plaintiffs lost—

1. The profits on the advertising already bargained for.

2. That they were prevented from making other contracts for advertising which were then in the course of negotiation.

3. Their business was entirely destroyed, and they were prevented from selling or leasing, or in any way disposing of, their property.

The case has been twice tried in the circuit court for the county of Wayne. Upon the first trial the judge directed a verdict for the defendant, which was reversed by this Court. Van Vranken v. News Co., 78 Mich. 217. The second trial resulted in a verdict for plaintiffs, which the circuit court set aside, and granted a new trial. After the case had been set for trial at a certain day, and was about to be reached, the defendant moved the court to direct the plaintiffs to furnish a bill of particulars, which motion, ujDon argument, was granted, on the ground—

“That a bill of particulars should be made in arriving at the question of damages, which is the real important question in the case, and that the damages recoverable should be fixed and determined, and be not in any way speculative, or rest in the caprice of a jury, should such question be submitted to them.”

In an action for breach of contract, where the damages are unliquidated, and depend upon what the jury shall find the plaintiff has suffered under the evidence, the party cannot be required to fix such damages in a bill of particulars. ■ Ordinarily, the granting of the order requiring a bill of particulars would not be reviewed or disturbed. But this Court will correct the action of the trial court, if it goes beyond what is properly required to be stated in a bill (Hamilton v. Ingham Circuit Judge, 84 Mich. 393); and in this case, if the requirement is to be such as is indicated in that portion of the return above quoted, it goes too far, and plaintiffs are not required to comply with that part. All that they can be required to do under the order is to specify with whom they have contracted for advertising, the length of time ■ the contracts were to run, and the damage claimed by them' in being prevented from performing them; and upon the trial they will not be confined to the exact amount fixed, but may recover any amount they can prove to the satisfaction of the jury, not ‘exceeding the amount claimed. They should also specify with whom they were negotiating for contracts, and the damage claimed by being prevented from fulfilling them. It appears to be impracticable to specify more particularly the demand under the third element of damage claimed than is specified in the declaration, and no further bill should be required as to those elements of damages.

We shall deny the motion, but from the language of the return, and to prevent a misconception and a further application in the future, we have considered it proper to state what the plaintiffs are required to do in compliance with the order.

It is claimed that, the ease having been twice tried, the defendant is fully apprised of the nature and extent of the demand against it. The court below was of the opinion that, although this was so, a bill of particulars would facilitate the trial. This we think is evident, as it will confine the range of proof within defined limits. Besides, without a bill of particulars, there is nothing to prevent the plaintiffs from bringing forward new items, not embraced in the former trial, to the surprise of the defendant. No costs will be allowed either party on this motion.