Vhay v. Gies , 236 Mich. 545 ( 1926 )

I am unable to determine from this record that a motion for a directed verdict was made. If one was made it should have been denied. Plaintiff not only sought to recover for rent but also sought to recover for money collected by defendant for deceased in his lifetime and not accounted for to him or to his representatives after his death. To sustain this claim, among the proof offered was the testimony given by defendant in probate court that she had collected for deceased over $1,000. Upon the present trial she claimed to have expended considerable of this for the benefit of deceased and the estate, but her concluding testimony was:

"There were three payments of $300 to be taken off of that. I stand ready and willing now to pay the balance that I owe of $121, I mean $131."

I agree with the Chief Justice that plaintiff cannot, under a count in assumpsit, recover for the use and occupation of the premises unlawfully withheld by defendant. But he is not without remedy, nor is his only remedy the one incidental to an action of ejectment. As pointed out by Mr. Justice STONE inSmith v. Haight, 188 Mich. 512, his remedy is by an action of trespass or tort. If plaintiff had counted in case for the unlawful withholding of the premises, his measure of damages would have been the same as under the present declaration, i.e., the rental value. Under these circumstances I think we should apply the provisions of Circuit Court Rule No. 22, § 4, as amended December 29, 1922 (221 Mich. xxxiv). This section as amended reads:

"A count in trespass on the case may be joined with a count in assumpsit in an action of assumpsit, and a count in assumpsit may be joined with a count in trespass on the case in an action of trespass on the case. And if after a verdict or judgment it appears in any action that an action of assumpsit should have been brought where an action of trespass on the case was brought, or an action of trespass on the case should have been brought where an action of assumpsit was brought, a new count in assumpsit or trespass on the case may be added to the declaration by amendment, and the verdict and judgment shall stand."

If this case does not fall within this rule it is difficult to perceive what useful purpose the rule could serve. I think the declaration should be amended by adding an appropriate count in trespass on the case and the judgment affirmed.

SHARPE, SNOW, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.