Sears, Roebuck & Co. v. Thomas

J. H. Gillis, P. J.

The late Judge Watts concurred in the results of this decision and the reasoning set forth herein, although he did not sign the opinion prior to his death.

Plaintiff filed a suit against the defendant with counts in assumpsit and trespass, alleging in the latter count that the defendant fraudulently incurred credit in excess of limitations imposed by plaintiff at the time the defendant was originally authorized to make credit purchases. After suit was commenced, but before trial, the defendant was adjudicated a bankrupt in the United States district court. At trial, on July 8, 1965, in view of the adjudication of bankruptcy, the defendant was immune from judgment based on an assumpsit action. At the conclusion of plaintiff’s proofs, the defendant moved for judgment of no cause for action. The trial court resolved the issues of fact in favor of the defendant and granted the defendant’s motion.

As pointed out in Kevreson v. Michigan Consolidated Gas Company (1965), 374 Mich 465 at page 467, we adhere to the holding set forth in Schneider v. Pomerville (1957), 348 Mich 49, Northwest Auto Co. v. Mulligan Lincoln-Mercury, Inc. (1957), 348 Mich 279, and in Barnes v. Beck (1957), 348 Mich 286. The record amply supports the trial judge’s finding that the plaintiff failed to establish that the defendant fraudulently incurred the indebtedness.

Affirmed. Costs to defendant.

Fitzgerald, J., concurred.