E. A. Pierce & Co. v. Sayers

I am not in accord with the opinion of Mr. Justice BUSHNELL. Plaintiffs filed a declaration alleging that they were copartners. They did not attach an affidavit as provided by 3 Comp. Laws 1929, § 14202 (Stat. Ann. § 27.897). The answer filed by defendant neither admitted nor denied the allegations of copartnership, but left plaintiffs to their proof. It is my opinion that under the pleadings in this case the burden was upon the plaintiffs to establish what they alleged. See Klein v. Kirschbaum, 240 Mich. 368. Defendant had the right to have the names of the parties bringing suit against him established on the record. A careful reading of the pleadings shows that the copartnership issue was involved. It was no surprise. Plaintiffs' failure to establish one of the essential elements of their case prevents recovery.

The judgment should be reversed, with costs to defendant.