Kristoffy v. Iwanski

From an order dismissing garnishment plaintiff has appealed. The declaration is in substance that plaintiff, because of fraud and conspiracy of defendants, was induced to part with real property of the value of $5,000, and money, $385, in the total sum of $5,385, in exchange for a vendor's interest in a land contract covering mortgaged property, and that such interest was wholly worthless and fraudulent. The declaration is in affirmance of the transaction, and in assumpsit upon waiver of the tort. The affidavit for writ of garnishment is that the indebtedness on "such contract" is the sum of $5,500, etc. The dismissal is upon the ground that the action arises in tort, not upon contract, and is for an unliquidated amount, and, therefore, will not support garnishment.

The statute, 3 Comp. Laws 1929, § 14857, so far as here important, permits garnishment in personal actions arising upon contract. The indebtedness must be such that it may be stated in the affidavit to be due on contract and in a given amount.

This action in assumpsit is upon waiver of the tort, as provided by 3 Comp. Laws 1929, § 14007. Plaintiff to waive tort and sue in assumpsit must set up special count; the common counts are not sufficient. Billig v. Goodrich, 199 Mich. 423;Burchy v. Carpenter, 181 Mich. 78.

Counsel for appellee assumes, from what was said inBryant Detwiler Co. v. Peterman, 210 Mich. 587, that garnishment will lie only in those cases where recovery may be had on the common counts. But that is not the holding. The court there was seeking to determine the nature of the action and concluded it was upon contract because the declaration contained the common counts.

Assumpsit may be upon an express contract or promise, or for nonperformance of an oral or simple written contract, or it may be a general assumpsit upon a promise or contract implied by law. At common law promises were implied by law, and one might waive tort and sue in assumpsit in certain cases, as where the tort arose out of contract relations or consisted of a conversion of plaintiff's property into money. Plefka v.Railway, 147 Mich. 641. The statute (said section 14007) enlarges the field of promises implied by law by giving larger right of waiver of tort.

A promise or contract is implied by law upon waiver of tort at common law and equally so upon waiver of tort by statute. The form of assumpsit declaration used is not important, respecting garnishment. It is important that the action shall arise upon contract. The action before us is one arising upon a contract implied by law.

Nearly all the indebtedness (it is urged in its entirety), here claimed, cannot be stated on oath and in a given amount within the meaning of the statute, for the value of the real property conveyed cannot be determined "by a standard referable to the contract itself," but must rest largely in opinion.Roelofson v. Hatch, 3 Mich. 277; Old Ben. Coal Co. v. UniversalCoal Co., 248 Mich. 486; Albee v. Schmied, 250 Mich. 270; 28 C. J. p. 29.

It follows that the principal suit does not support the garnishment. I Stevens, Mich. Practice, p. 148. This decides the only matter presented.

Affirmed.

BUTZEL, C.J., and WIEST, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.