Docket No. 56, Calendar No. 46,347.

344 Mich. 300 (1955)

73 N.W.2d 908


Supreme Court of Michigan.

Decided December 28, 1955.

Attorney(s) appearing for the Case

McInerney & Swaby, for plaintiff.


Involved is a written contract by which plaintiff employed defendant Ashton as "consultant on problems in engineering, design and sales" in its business. Plaintiff agreed to pay Ashton "an expense account of $50 per week, which will be applied by him in good faith in relation to his work but for which he will not be required to give to the corporation a detailed accounting." Plaintiff made the $50 weekly payments to Ashton for 2 years, to a total of $5,100. Plaintiff then contended that Ashton had not used the money for its benefit, as required by the contract, and brought this suit for an accounting and recovery of the amount not so used. An order of reference to a circuit court commissioner was made and testimony taken before him touching Ashton's use of the $5,100 and the accounting thereof which plaintiff sought. The commissioner made findings of fact, conclusions of law, and a recommendation that plaintiff's bill of complaint be dismissed. After plaintiff filed exceptions thereto and defendants moved to confirm and that a decree enter accordingly, a decree was entered dismissing the bill with prejudice. Plaintiff appeals.

Plaintiff's first 2 contentions are that a decree dismissing the bill should not have been entered on the record made before the commissioner on the accounting issue only without a hearing before the court on the question of fraud and conspiracy alleged in its bill of complaint, and, second, that for that reason its motion for a rehearing should have been granted. The bill avers that plaintiff has evidence that defendants conspired to defraud plaintiff by not using the $5,100 for the purpose contemplated by the contract but for their own use. It fails to allege facts and circumstances constituting the claimed fraud and conspiracy. This amounts to no more than pleading a conclusion. It is not sufficient to entitle plaintiff to a hearing on the claim of fraud and conspiracy. McMahon v. Rooney, 93 Mich. 390; Schwab v. Mabley, 47 Mich. 572. Furthermore, inasmuch as a hearing thereon could have been productive of no other relief and the plaintiff did not pray for other relief than that to which a favorable conclusion of the accounting might have shown plaintiff to be entitled, no purpose could have been served by taking further testimony than that taken on the accounting before the commissioner. No error was committed in this respect.

The rest of plaintiff's questions raised go to whether defendant Ashton accounted for all of the $5,100 paid to him as fully as required by the contract, whether he had the right to exercise his own discretion as to the uses to which the money might be put for plaintiff's benefit, and whether he was entitled to use it for entertainment of plaintiff's customers or prospects. We agree with the commissioner and the trial court that the answer should be in the affirmative. The contract specified that defendant Ashton was not required to give plaintiff a detailed accounting. His proofs, scarcely rebutted by plaintiff, were to the effect that he had spent the entire $5,100 on engineering supplies and for promoting sales for plaintiff's benefit. In large measure his testimony in that respect was corroborated by other witnesses or documentary evidence. The provisions of the contract, its purpose, the nature of Ashton's work, and the testimony of plaintiff's president that other moneys had been expended with his approval for the entertainment of customers convince us that the uses to which Ashton put the money were not improper, but consistent with the spirit and intent of the contract.

Plaintiff urges that the decree should have required the return by defendants to plaintiff of certain property. It consisted of boats, an outboard motor, trailer, et cetera, which had been used by defendants for entertaining plaintiff's customers and prospects. The unrefuted testimony of defendants was that the property was not in their possession and their counsel announced at the hearing that plaintiff was welcome to take possession thereof at the place where located for the use of plaintiff's customers; counsel for plaintiff replied that plaintiff did not want the property. Under such circumstances there was no occasion for a decree requiring delivery of the property by defendants to plaintiff.

Affirmed. No costs, defendants having filed no brief.



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