author: T. M. Burns, J. Danhof, C. J.

text:
    NORTHERN PLUMBING & HEATING, INC. v HENDERSON BROTHERS, INC.
    Docket No. 77-201.
    Submitted December 6, 1977, at Grand Rapids.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Henderson Brothers, Inc. planned to bid as a general contractor and requested sealed bids from prospective subcontractors to use in its bid for construction contracts with the City of Cheboygan on additions to the waste water treatment plant. Northern Plumbing and Heating, Inc., was listed as a prospective subcontractor in Henderson’s bid to the city. The city signed a contract with Henderson as the general contractor, but that contract listed Phoenix Contractors, Inc., as the subcontractor, in place of Northern. Northern then commenced an action against Henderson and Phoenix alleging that it had a contract with Henderson based on custom in the trade and that Phoenix committed three distinct torts: (1) a conspiracy to breach a contract between Northern and Henderson, (2) tortious interference with an existing contract, and (3) tortious interference with an advantageous business relationship. Defendant Phoenix was granted summary judgment, Kent Circuit Court, George R. Cook, J. Plaintiff appeals. Held:

    Summary judgment on the basis that there was no issue of fact was improper where the depositions of the opposing parties raised a material issue of fact which should be decided by the trier of fact. The statute of frauds is not a bar to actions for tortious interference with an existing contract and tortious interference with an advantageous business relationship.
    Reversed and remanded.
    Danhof, C. J., dissented:
    The trial court’s grant of summary judgment on the grounds that, assuming the existence of a contract, Phoenix had not taken any action which amounted to tortious interference was proper because actions for wrongfully inducing a breach of contract are barred where there is an absence of an enforceable contract and because the plaintiffs allegations failed to show that Phoenix took any action which amounts to tortious interference with an advantageous business relationship.

      References foe Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 26.

       73 Am Jur 2d, Summary Judgment § 5.

       45 Am Jur 2d, Interference § 9.

       45 Am Jur 2d, Interference §§ 7, 27.

       45 Am Jur 2d, Interference §§ 1, 7, 11, 12, 50.

       73 Am Jur 2d, Statute of Frauds § 518.

       73 Am Jur 2d, Statute of Frauds § 606.

      Opinion op the Court
    1. Judgment—Summary Judgment—Issues op Fact—Tort Cases— Court Rules.
    A motion for summary judgment which states that except as to the amount of damages there is no genuine issue of material fact should be granted only where it is obvious that the nonmoving party’s case is subject to some deficiency which cannot be overcome at trial; courts are liberal in finding that genuine issues of material fact do exist, especially in tort cases (GCR 1963, 117.2[3]).
    2. Judgment—Summary Judgment—Issues op Fact—Trial by Affidavit—Jury Trial—Court Rules.
    A trial court, in granting summary judgment because no issue of fact exists, should be careful to avoid substituting a trial by affidavit and deposition for a trial by jury (GCR 1963, 117.2[3]).
    3. Judgment—Summary Judgment—Issues of Fact—Jury Submissible Case.
    The issue presented by a motion for summary judgment based on no genuine issue of fact is not a determination of whether plaintiff has a jury-submissible case, but simply whether a genuine issue of fact has been raised.
    4. Judgment—Summary Judgment—Depositions—Inferences— Contract— Subcontractors—Interference with Contract— Court Rules.
    Summary judgment in favor of a defendant-subcontractor in a suit by a plaintiff who was alleging the existence of a contract between the plaintiff and a defendant-contractor, a conspiracy between the defendants to breach the contract between plaintiff and defendant-contractor, and that the defendant-subcontractor had tortiously interfered with that existing contract was improper where the depositions of the agents of the two defendants raised an inference that the defendant-contractor had acted on its own in changing its subcontractors and the deposition by the plaintiff’s president raised an opposite inference (GCR 1963,117.2[3]).

      5. Torts—Contracts—Interference with Contract—Interference with Business Relationship—Statute of Frauds—Statutes.
    The statute of frauds may not be claimed as a bar in a suit wherein tortious interference with an existing contract or tortious interference with an advantageous business relationship is alleged (MCL 566.132; MSA 26.922).
    6. Torts—Contracts—Breach of Contract—Conspiracy to Breach Contract—Statute of Frauds.
    A plaintiff who is alleging that a contracting party and a stranger to the contract have conspired to cause a breach of that contract must show a writing sufficient to satisfy the statute of frauds; if the contract is not enforceable against the contracting party, that party would have committed no wrong in not performing the contract, and neither would a stranger to the contractor have committed any wrong.
    7. Torts—Contracts—Interference with Contract—Elements.
    To prevail on the theory of tortious interference with an existing contract, a party must show that (1) a contract existed, (2) it was breached, (3) a stranger to the contract instigated the breach, and (4) that stranger did so without justification.
    8. Torts—-Contracts—Interference with Contract—Statute of Frauds—Statutes.
    A claimed interfering third party may not raise the statute of frauds as a bar to a suit alleging tortious interference with an existing contract because this tort is not dependent on the enforceability of the contract per se but on the stranger’s interference with the contract (MCL 566.132; MSA 26.922).
    9. Torts—Tortious Interference with Business Relationship— Elements.
    The basic elements which establish a prima facie tortious interference with a business relationship are: the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy, knowledge of the relationship or expectancy on the part of the interferer, an intentional interference inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the party whose relationship or expectancy has been disrupted; one is liable for commission of this tort who interferes with business relations of another, both existing and prospective, by inducing a third person not to enter into or continue a business relation with another or by preventing a third person from continuing a business relation with another.
    10. Torts—Tortious Interference with Advantageous Business Relationship—Contracts—Statute of Frauds.
    Tortious interference with an advantageous business relationship is not necessarily based on contract; therefore, the statute of frauds is no bar to such a cause of action.
    Dissent by Danhof, C. J.
    11. Torts—Contracts—Breach of Contract—Conspiracy to Breach Contract—Statute of Frauds—Statutes.

      There is no legal basis for a claim that a defendant conspired to breach a contract where the statute of frauds applies and there is no writing sufficient to satisfy the statute (MCL 566.132; MSA 26.922).

    12. Contracts—Statute of Frauds—Memorandum—Parol Evidence.

      To satisfy the statute of frauds a memorandum must contain the substantial elements of a contract expressed with such certainty that they may be understood without resort to parol evidence.

    13. Torts—Contracts—Tortious Interference with Contract— Absence of Binding Contract.

      The absence of a binding contract is a bar to a claim of tortious interference with a contract.

    14. Torts—Interference with Advantageous Business Relationship—Contracts—Statute of Frauds—Summary Judgment.

      The tort of interference with an advantageous business relationship does not depend on the existence of an enforceable contact and, therefore, the statute of frauds is not available as a defense; however, the trial court’s grant of summary judgment for a defendant was proper where the plaintiff failed to allege any actions by the defendant which amounted to tortious interference with an advantageous business relationship.

    15. Torts—Tortious Interference with Business Relationship— Contracts—Actions Without Justification—Improper or Illegal Means.

      Not all actions which bring about the nonperformance of a contract or hinder the development of an advantageous business relationship are tortious interference; one is liable only for actions taken without justiñcation; to constitute tortious inter

      ference with an advantageous business relationship the means of interference must be "improper or illegal’’.

      Richard H. School, for plaintiff.

      Warner, Norcross & Judd (by Robert H. Skilton and Joseph G. Scoville), for defendant Phoenix Contractors, Inc.
    Before: Danhof, C. J., and M. J. Kelly and T. M. Burns, JJ.
   T. M. Burns, J.

Plaintiff Northern Plumbing and Heating, Inc., appeals by right from the trial court’s grant of summary judgment to defendant Phoenix Contractors, Inc., under GCR 1963, 117.2(3). Summary disposition of Northern’s claims against Phoenix was improper and is reversed.

I

The underlying facts of this controversy arose out of bidding for construction contracts on the waste water treatment plant additions for the City of Cheboygan. Defendant Henderson Brothers, Inc., planned to bid as the general contractor for this project and solicited bids from various mechanical subcontractors, including Northern and Phoenix. In its bid to the city, Henderson listed Northern as a subcontractor, and this was done on the belief that Northern was the low bidder for the mechanical subcontracting work.

What happened from the time of the submission of the bid by Henderson listing Northern as a subcontractor until Henderson signed the contract with the city with Phoenix as the subcontractor, forms the basis of this action and should be submitted to a jury for factual determination.

II

Northern filed this suit against Henderson and Phoenix, claiming that it had a contract with Henderson to do the mechanical subcontracting work based on the custom in the trade and alleging a conspiracy between Henderson and Phoenix to breach that contract, tortious interference by Phoenix with the contract, and, alternatively, if no contract was found, tortious interference by Phoenix of an advantageous business relationship with Henderson. In this appeal, only Northern’s claims against Phoenix are involved.

In response to the complaint, Phoenix filed motions for accelerated judgment, GCR 1963, 116.1(5), based on the statute of frauds, MCL 566.132; MSA 26.922, and summary judgment, GCR 1963, 117.2(3), claiming there were no genuine issues of material fact with regard to the happening of acts of interference by Phoenix employees or causation, i.e., that Henderson did not contract with Northern, or that Henderson breached its contract with Northern, if one existed, solely for its own reasons, rather than any act by Phoenix.

After the parties had taken some depositions and submitted affidavits, the trial court granted Phoenix’ motion for summary judgment. In doing so, the court assumed the existence of a contract but held that there was no showing that Phoenix had interfered with or caused Henderson to breach that contract. In effect, the court ruled that it was solely Henderson’s decision not to proceed with Northern as the subcontractor on the Cheboygan project. In doing so, the court erred.

III

The courts are liberal in finding that genuine issues of material fact do exist, especially in tort cases, and a motion under rule 117.2(3) should be granted only where it is obvious that the nonmoving party’s case is subject to some deficiency which cannot be overcome at trial. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973).

In ruling that no issue of fact exists, the court must be careful to avoid substituting a trial by affidavit and deposition for trial by jury. Freeman v Massachusetts Mutual Life Insurance Co, 27 Mich App 572; 183 NW2d 832 (1970). The court is not allowed to make findings of fact or to weigh the credibility of affiants or deponents. Bilicki v W T Grant Co, 382 Mich 319; 170 NW2d 30 (1969), Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976) . The test is not whether plaintiff has presented facts sufficient to show a jury submissible case in response to the motion, but rather, whether there are genuine issues of material fact. Smith v Woronoff, 75 Mich App 24; 254 NW2d 637 (1977).

With these principles in mind, it is held: that issues of fact do exist in regard to the existence of a contract, any acts of interference by Phoenix, and whether those acts were the cause of Henderson’s decision not to use Northern on this project. See, Hutchings v Dave Demarest & Co, 52 Mich App 274; 217 NW2d 72 (1974). The depositions of Phoenix’ and Henderson’s agents do tend to show that Henderson acted entirely on its own in proceeding with Phoenix as the subcontractor, but Northern’s president’s deposition raises the opposite inference. It is not for us or the trial court to decide this matter, but for the trier of fact. Given that the trial court allowed only a short period for plaintiff to show the existence of fact issues, it is not surprising that a complete case was not presented at the motion hearing.

IV

Since the trial court assumed the existence of a contract, it never reached the question of the statute of frauds, and the effect it would have on the tortious conduct alleged by plaintiff against Phoenix.

Northern alleged three distinct torts against Phoenix; (1) a conspiracy to breach a contract between Phoenix and Henderson, (2) tortious interference with an existing contract by Phoenix, and (3) tortious interference with an advantageous business relationship. The statute of frauds is not a bar to the second and third actions.

A. Conspiracy

Where there is an allegation that a contracting party and a stranger to the contract have conspired to cause a breach of that contract, the plaintiff must show a writing sufficient to satisfy the statute of frauds. Jaques v Smith, 62 Mich App 719; 233 NW2d 839 (1975), lv den, 395 Mich 829 (1976). If the contract is not enforceable against the contracting party, he would have committed no wrong in not performing the contract, and neither would a stranger to the contract. 16 Am Jur 2d, Conspiracy, § 50. Different considerations apply to the other allegations in this case.

B. Tortious interference with an existing contract

To prevail on this theory, plaintiff must show that a contract existed, that it was breached, that Phoenix instigated the breach and that it did so without justification. Dassance v Nienhuis, 57 Mich App 422; 225 NW2d 789 (1975).

There is a division in the authorities concerning whether the interfering third party may rely on a contract defense, such as the statute of frauds, to defeat this action. See, 45 Am Jur 2d, Interference, § 9, p 286. Our Supreme Court has not specifically held for either position but in Coronet Development Co v F S W, Inc, 379 Mich 302, 313; 150 NW2d 809 (1967), the Court stated:

"We are not unmindful of the strongly urged contention of plaintiff that the inducing of the breach of a contract, even though the contract be unenforceable under the statute of frauds, is actionable. With the proposition in general terms we have no disagreement. The authorities cited in support thereof sustain it.”

The statute of frauds is not a bar to this type of action. This is a tort, not dependent on the enforceability of the contract per se, but rather, on the stranger’s interference with it. Plaintiff must still show all of the elements for contract formation, that is, that a contract existed, but it is not necessary to show that the contract is enforceable in an action at law against the other contracting party.

C. Tortious interference with advantageous business relationships

"The basic elements which establish a prima facie tortious interference with a business relationship are the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted. One is liable for commission of this tort who interferes with business relations of another, both existing and prospective, by inducing a third person not to enter into or continue a business relation with another or by preventing a third person from continuing a business relation with another.” 45 Am Jur 2d, Interference, § 50, p 322.

Since this tort is not necessarily based on contract, the statute of frauds would be no bar.

V

The heart of this case is whether genuine issues of material fact exist relating to contract formation, whether Phoenix engaged in any acts of interference with the contract if one existed, or with an advantageous business relationship if no contract existed, and whether those acts induced Henderson to end its relationship with Northern. It is held that there are questions of fact, the summary judgment is reversed and the matter is remanded for trial. The type of actions alleged by Northern are not well developed in this state, and plaintiff should be allowed to proceed to trial. Hutchings v Dave Demarest & Co, supra. Whether Northern will ultimately prevail depends on the facts that it will be able to present at trial, not on affidavits and depositions.

Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.

M. J. Kelly, J., concurred.

Danhof, C. J.

(dissenting). This controversy arose out of the construction project. Defendant, Henderson Brothers, Inc. (Henderson) is a general contractor which, through a trade publication, requested sealed bids from subcontractors, including both plaintiff, Northern Plumbing and Heating, Inc. (Northern), and defendant, Phoenix Contractors, Inc. (Phoenix). In submitting its own bid to the city, Henderson listed Northern as a subcontractor in the belief that Northern was the low bidder. From this point on the testimony and allegations are in conflict.

Mr. Buday, President of Northern, stated that when he arrived at Henderson’s office to fill out equipment questionnaires, Mr. Robinson of Henderson’s told him that two men from Phoenix had been in asking why Henderson had not chosen Phoenix, stating that Northern might not be capable of doing the job, and generally "badmouthing” Northern. Also at the meeting, Mr. Buday, was questioned about Northern’s ability to get a performance bond. Although this was never mentioned before, Henderson claimed that Northern must be bonded if Henderson was to get a performance bond which was required by the contract.

Mr. Buday also testified that he later asked Mr. Henderson if "someone was knocking on your back door” and that he answered that Phoenix was. Mr. Henderson says that he might have made this statement. Around August 4, 1976, over lunch, some men from Henderson attempted to get Northern to agree to withdraw its bid in return for other work on the project. No agreement was reached. A day or so later, Henderson attempted to get Mr. Buday to sign a hold harmless agreement, but he refused to do so. On October 16, 1976, the city signed the contract with Henderson as general contractor, listing Phoenix as a subcontractor. Henderson then placed a purchase order with Phoenix for subcontracting work. Plaintiff then filed suit. The trial judge granted Phoenix’s motion for summary judgment stating that even if he assumed there was a contract between Henderson and Northern, he could not find allegations which would indicate that defendant tortiously interfered with plaintiff’s contract.

In his complaint plaintiff alleges that Phoenix committed three distinct torts: (1) a conspiracy to breach a contract between Northern and Henderson, (2) tortious interference with an existing contract, and (3) tortious interference with an advantageous business relationship. The trial judge granted defendant’s motion for summary judgment on the grounds that, assuming the existence of a contract, Phoenix had not taken any actions which amounted to tortious interference. I would hold that the order of summary judgment was proper since actions for wrongfully inducing a breach of contract are barred by the absence of an enforceable contract and because plaintiffs allegations failed to show that Phoenix took any action which amounts to tortious interference with an advantageous business relationship.

I

I agree with the majority that one must show an enforceable contract as a prerequisite to establishing a claim for conspiracy to breach a contract. When the statute of frauds, MCL 566.132; MSA 26.922, applies and there is no writing sufficient to satisfy the statute, there is no legal basis for a claim that defendant conspired to breach that contract, Jaques v Smith, 62 Mich App 719; 233 NW2d 839 (1975), lv den 395 Mich 829 (1976). The statute is applicable since the construction time was estimated at 900 days with mechanical subcontracting being one of the last jobs to be performed. The principle is well settled that to satisfy the statute of frauds the memorandum must contain the substantial elements of a contract expressed with such certainty that they may be understood without resort to parol evidence, Messmore v Cunningham, 78 Mich 623; 44 NW 145 (1889), Association of Hebrew Teachers v The Jewish Welfare Federation, 62 Mich App 54; 233 NW2d 184 (1975). Plaintiff contends that the requirements of the statute of frauds were satisfied by the proposal Henderson submitted to the city which listed Northern as the subcontractor and certain notes made by Henderson in computing the bids. These writings are not sufficient for the statute of frauds because they do not contain all the substantial elements of the contract.

As plaintiff asserts, the proposal submitted by Henderson may incorporate the city’s contract which lists the materials required and specifications. Even though this would provide substantial details on some issues, it does not cover all the terms. It does not purport to spell out any of the many possible alternatives that could govern a contractor-subcontractor relationship, such as manner of payment or penalty provisions. In a very similar case, the Washington Supreme Court also concluded that "[s]uch essentials, as manner of payment, time for completion of the mechanical portion of the work, penalty provisions, bonding, etc., are normally critical to any construction contract”. The Plumbing Shop, Inc v Pitts, 67 Wash 2d 514, 518; 408 P2d 382 (1965). The other internal working papers mentioned by the plaintiff do not cure this deficiency since they do not contain any internal reference to the proposal or each other, Hewett Grain & Provision Co v Spear, 222 Mich 608; 193 NW 291 (1923). I agree with the majority that if a contract is not enforceable, then the contracting party would not be liable for damages for nonperformance and neither would he, or a stranger, be liable for agreeing to not perform.

II

However, I cannot agree with the majority that the absence of a binding contract is not a bar to a claim of tortious interference with a contract. This holding is not consistent with the holding on the conspiracy claim or the ratio decidendi of Jaques v Smith, supra. Since the claim of conspiracy to breach a contract requires an enforceable contract, Jaques v Smith, supra, so does the claim for tortious interference. These claims, even though they sound in contract, are both essentially tort claims, 16 Am Jur 2d, Conspiracy, § 56, p 154. As the Court stated in Roche v Blair, 305 Mich 608, 613-614; 9 NW2d 861 (1943),

"The law is well established that in a civil action for damages resulting from wrongful acts alleged to have been committed in pursuance of a conspiracy, the gist or gravamen of the action is not the conspiracy but is the wrongful acts causing the damages. The conspiracy standing alone without the commission of acts causing damage would not be actionable. The cause of action does not result from the conspiracy but from the acts done.”

See also Fenestra, Inc v Gulf American Land Corp, 377 Mich 565; 141 NW2d 36 (1966), Bush v Sprague, 51 Mich 41; 16 NW 222 (1883). The major difference between the conspiracy claim and the tortious interference claim is that the conspiracy claim contains an additional element of an agreement between the nonperforming party and the stranger. The tort of (nonconspiracy) interference with a contract does not require this agreement. The gravamen of the conspiracy claim is that plaintiff suffered damages from the nonperformance of an enforceable contract. If a person does not suffer recoverable damages from the nonperformance of a nonenforceable contract, or from an agreement between the other party and the stranger not to perform a nonenforceable contract, likewise he should not recover any damages from the nonperformance of a nonenforceable contract which is induced by a stranger.

III

The tort of interference with an advantageous business relationship does not depend on the existence of an enforceable contract and therefore the statute of frauds is not available as a defense to these claims. However, I would affirm the order of summary judgment for the reasons given by the trial court, specifically, because plaintiff failed to allege any actions by defendant which amounted to tortious interference with an advantageous business relationship. To establish tortious interference with an advantageous business relationship by a competitor, one must show the use of improper or illegal means, 4 Restatement Torts, § 768, p 71; 45 Am Jur 2d, Interference, § 31, p 308. Plaintiff has not alleged the use of improper or illegal means.

Not all actions which bring about the nonperformance of a contract or hinder the development of an advantageous business relationship are tortious interference. One is liable only for actions taken without justification, 4 Restatement Torts, § 766, p 49, 45 Am Jur 2d, Interference, § 27, p 304; Prosser, Torts (4th ed), § 130, p 949. Public policy considerations weigh heavily in determining what constitutes tortious interference and when liability is not imposed because the actions are justifiable. In determining the standard of conduct relating to tortious interference, the law for policy reasons distinguishes between tortious interference with a contract and tortious interference with an advantageous business relationship. Certain actions which constitute tortious interference with a contract are not tortious in reference to interference with an advantageous business relationship. In other words, the reasons justifying interference with an advantageous business relationship may not be sufficient to justify the same action if it will interfere with a binding contract.

The primary reason for the requirement of "improper or illegal” means in a claim for tortious interference with an advantageous business relationship, rather than the standard used in contract cases, is to avoid unnecessarily stifling competition. The social desirability of encouraging competition will justify some actions in an advantageous business relationship case which would be tortious if a contract existed. A contract represents the final product of competition and when a contract is finally concluded, public policy favors the stability and planning made possible by it. Consequently, since most of the goals of competition have already been achieved, the law imposes liability on one who interferes with the performance of the contract. However, if a final agreement has not been reached, legitimate competition is still desirable. The courts are more reluctant to impose liability for actions taken in the furtherance of competition at this stage. The law does not want to unnecessarily restrict the available means of competition. It is for this reason, that one is only liable for tortiously interfering with an advantageous business relationship if he uses improper or illegal means.

To use the same standard in advantageous business relationship cases as is used in contract cases would unnecessarily restrict competition two ways. To apply this standard to all advantageous business relationship cases would unnecessarily limit the available means of competition in all advantageous business relationship cases. Also, because of the uncertainty of determining when an advantageous business relationship exists, the application of this standard of conduct could also chill competition in all cases on the fringe of an advantageous business relationship. The courts are reasonably certain of when an enforceable contract exists, but the perimeters of an advantageous business relationship have not been precisely established yet. Therefore, the fear of tort liability and the uncertainty of knowing whether an advantageous business relationship exists, could unnecessarily chill competition even in cases where an advantageous business relationship does not exist, if the standard used in interference with contract cases is applied.

Plaintiff has failed to allege any actions by defendant which meet the "illegal-or-impropér means” requirement. The questioning of plaintiffs ability to secure a performance bond is not an improper means of competition. Plaintiff has not alleged any improper motive on the part of defendant in taking this action. Also the mere allegation of "badmouthing” is not sufficient. Plaintiff does not allege any fraud, defamation, or bad motive on the part of defendant or even that the statements made were untrue, Regal Home Distributors, Inc v Gordon, 45 Del 49; 66 A2d 754 (1949). Even accepting the allegations as true, and realizing that such a practice is of questionable ethics, it does not amount to an improper or illegal method of competition, 45 Am Jur 2d, Interference, § 31, p 308. Consequently, summary judgment was proper on plaintiffs claim of interference with an advantageous business relationship.

       The hearing on these motions and plaintiffs request for an injunction was originally held on December 17, 1976. After plaintiff withdrew his application for an injunction, the court adjourned the proceedings until January 3, 1977, for the taking of depositions.
      At the adjourned hearing, plaintiff presented testimony on the issues of contract formation (industry practice) and the relationship of Phoenix’ bid to Northern’s concerning which was lower. The depositions of employees and officers of the various companies involved were also presented, but it is clear that not everyone that plaintiff would call in the trial was heard from at this hearing.

        Williams v De Man, 7 Mich App 71; 151 NW2d 247 (1967), did not deal specifically with the statute of frauds question. The court there found that, in fact, no contract existed and held that there must be a contract, something which is not disputed here. The question isn’t whether there must be a contract, but whether that contract is subject to contract defenses by a noncontracting party.

       It is not entirely clear from the report of Coronet Development Co v F S W, Inc, supra, whether the Court was dealing with a conspiracy case exclusively or also a claim of interference by noncontracting parties, or both. The language quoted would seem to apply only where the allegation is against only a noncontracting party.

       For cases interpreting "illegal or improper” means, see Show Management v Hearst Publishing Co Inc, 196 Cal App 2d 606; 16 Cal Rptr 731 (1961), Coleman & Morris v Pisciotta, 279 App Div 656; 107 NY Supp 2d 715 (1951), Terry v Dairymen’s League Cooperative Association, 2 App Div 2d 494; 157 NY Supp 2d 71 (1956), Brause v First National Real Estate Trust, 25 App Div 2d 624; 267 NY Supp 2d 876 (1966), Regal Home Distributors, Inc v Gordon, 45 Del 49; 66 A2d 754 (1949), Martin v Phillips Petroleum Co, 455 SW2d 429 (Tex Civ App, 1970).


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    PEOPLE v NEAL
    Docket No. 77-331.
    Submitted March 8, 1978, at Grand Rapids.
    Decided May 8, 1978.
    Charles E. Neal was convicted of manslaughter, after the trial court had denied his motion for a directed verdict of acquittal, Berrien Circuit Court, William S. White, J. Defendant appeals. Held:

    The trial court did not err in denying the defendant’s motion for a directed verdict of acquittal where the corpus delicti of the crime charged was established by circumstantial evidence and the reasonable inferences drawn therefrom, and where the evidence introduced at trial would justify a reasonable man in concluding that all of the elements of the crime, including the defendant’s participation, were established beyond a reasonable doubt.
    Affirmed.
    1. Homicide—Felonious Homicide—Manslaughter—Corpus Delicti —Evidence—Circumstantial Evidence.
    The corpus delicti of felonious homicide, including manslaughter, consists of evidence of a death and of a criminal agency as its cause; the corpus delicti may be established by circumstantial evidence and reasonable inferences drawn therefrom.
    2. Criminal Law—Appeal and Error—Motions—Directed Verdict of Acquittal—Evidence—Elements of Crime.
    Denial of a defendant’s motion for a directed verdict of acquittal is appropriate where the evidence, introduced to the time that the motion is made, viewed in the light most favorable to the prosecution would justify a reasonable man in concluding that all of the elements of the crime are established beyond a reasonable doubt.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 284, 455.

       5 Am Jur 2d, Appeal and Error § 886.

       75 Am Jur 2d, Trial §§ 208, 266.
    Propriety and prejudicial effect of comment or evidence as to accused’s willingness to take lie detector test. 95 ALR2d 819.

       75 Am Jur 2d, Trial § 176.

       40 Am Jur 2d, Homicide § 280.

      3. Criminal Law—Mistrial—Witnesses—Reference to Polygraph Test—Appeal and Error.
    A trial court’s failure to grant a mistrial because of a reference, by a prosecution witness, to the fact that a defendant had been asked to take a polygraph test was not error where the reference was brief, inadvertent and isolated, and was not pursued beyond the original mention of the test.
    4. Criminal Law—Motions—Mistrial—Evidence—Traffic Arrest —Arrest Without Conviction—Trial Court’s Discretion.
    Denial of a defendant’s motion for a mistrial because there was testimony of a police officer concerning a prior traffic arrest and that the officer searched the trunk of the defendant’s car while there were five or six police officers present, and that karate sticks were found in the trunk was not an abuse of discretion where the defendant did not specifically object to the officer’s testimony on grounds that it presented to the jury evidence of prior arrests which did not result in conviction.
    5. Criminal Law—Homicide—Evidence—Victim’s Pregnancy—Motive—Defendant’s Knowledge.
    It was not an abuse of the trial court’s discretion to allow the introduction of evidence of a homicide victim’s alleged pregnancy where the evidence was allowed, over the pretrial objection of the defendant, in order to show motive and on condition that there was proof introduced that defendant had knowledge that the victim was claiming that he was the father of the child.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Chris W. Dunñeld, Assistant Prosecuting Attorney, for the people.

      Robert A. Yingst, for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and D. E. Holbrook and Beasley, JJ.
   Beasley, J.

Defendant was convicted by a jury of manslaughter. After sentence, he appeals as a matter of right.

Defendant was charged with the slaying of his 17-year-old girlfriend, when her skull was found some two months after she disappeared from her home. The victim was pregnant at the time of her death, and, although defendant denied it, there was evidence that she claimed that he was the father. There was also evidence that defendant vowed that he would never pay child support for the victim’s then unborn child.

Found in a pine grove near where the victim’s skull was found was a plastic afro-style hair pick "just like” the one owned by defendant, a piece of rope similar to rope defendant had been seen using to tie down his car trunk lid and various items of women’s clothing, including a checkered coat similar to one worn by the victim and a bra with a cut strap. The piece of rope had bloodstains on it. A man who lived near where the skull was found said he saw a car parked in the vicinity on the night of the victim’s disappearance. He said he saw a black man in the driver’s seat and a woman in a checkered coat lying down in the car. He identified defendant as the man he saw in the car. The witness said he found a woman’s shoe in the pine grove a few days later. He said he saw car tracks going from the main road up an old road which runs by the pine grove, and that he saw footprints around where the car was parked and a single set of footprints leading into and then coming out of the pine grove. He said the tracks going into the pine grove were deeper than those coming out.

Two other witnesses testified that defendant asked them to falsify statements to investigating police officers in order to support defendant’s alibi story.

On appeal, defendant contends that the trial court erred in denying his motion for a directed verdict of acquittal. His claim is based on two grounds: 1) that the prosecution failed to establish the corpus delicti of homicide, and 2) that the prosecution failed to present sufficient evidence that defendant committed the alleged crime. We do not agree.

Defendant first argues that the prosecution failed to establish the corpus delicti of the homicide in the within case. The Michigan authorities have held that the corpus delicti of a felonious homicide, including manslaughter, consists of evidence of a death and of a criminal agency as its cause. The corpus delicti may be established by circumstantial evidence and reasonable inferences drawn therefrom.

A review of the evidence in the within case convinces us that the prosecution met its burden of establishing the corpus delicti of the homicide. We also find that there was evidence introduced at trial which, viewed in the light most favorable to the prosecution, would justify a reasonable man in concluding that all of the elements of the crime, including defendant’s participation, were established beyond a reasonable doubt. The trial court did not err in denying defendant’s motion for a directed verdict.

Defendant also contends that the trial court erred in failing to grant a mistrial following mention by a prosecution witness that defendant had been asked to submit to a polygraph test and that defendant had been arrested for a traffic violation and karate sticks were found in the trunk of his car at that time. We do not agree.

The reference to the polygraph test in the within case was brief, inadvertent and isolated, and it was not pursued beyond the original mention of the test. In addition, defendant expressly waived right to a mistrial with regard to the polygraph remark. There was no error.

As to the evidence of a prior traffic arrest, defendant objected at trial to the police officer’s testimony that he had searched the trunk of defendant’s car and that there were five or six police officers present. Defendant contended that this was highly prejudicial and, coupled with the reference to a polygraph test, should result in a mistrial. Defendant did not specifically object to the officer’s testimony on grounds that it presented to the jury evidence of prior arrests which did not result in conviction. We are not convinced that there was an abuse of discretion by the trial court in denying defendant’s motion for a mistrial, and decline to hold that there was error.

Finally, defendant contends that the trial court erred in permitting testimony regarding the victim’s alleged pregnancy. We do not agree. The trial court allowed the testimony over the pretrial objection of defendant in order to show motive and on the condition that there was proof introduced that defendant had knowledge that the victim was claiming that he was the father of the child. We find no abuse of the trial court’s discretion and decline to hold that there was error.

Affirmed.

       MCL 750.321; MSA 28.553.

        People v Martin, 59 Mich App 471; 229 NW2d 809 (1975), overruled, Jackson County Prosecutor v Court of Appeals, 394 Mich 527, 528; 232 NW2d 172 (1975) (overruled on jurisdictional question only).

        People v Burlingame, 257 Mich 252; 241 NW 253 (1932), People v Mumford, 60 Mich App 279; 230 NW2d 395 (1975).

        People v Royal, 62 Mich App 756; 233 NW2d 860 (1975), People v Scott, 72 Mich App 16, 19; 248 NW2d 693 (1976).

        People v Whitfield, 58 Mich App 585; 228 NW2d 475 (1975), People v Paffhousen, 20 Mich App 346; 174 NW2d 69 (1969), People v Tyrer, 19 Mich App 48; 172 NW2d 53 (1969).

        People v Hayton, 28 Mich App 673; 184 NW2d 755 (1970).

        People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).


text:
    FORD MOTOR COMPANY v BENDIX CORPORATION
    Docket No. 77-621.
    Submitted February 21, 1978, at Detroit.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Ford Motor Company commenced an action against Bendix Corporation seeking indemnification for a jury verdict in a personal injury action wherein products liability was at issue. In the underlying action both Ford and Bendix were defendants. Bendix settled with the plaintiff in the personal injury action and, on the next day, Ford tendered to Bendix the opportunity to defend Ford claiming that Bendix would ultimately have to indemnify Ford for any verdict against Ford because damages would be attributable to a part furnished by Bendix. Bendix declined the tender. The trial court granted summary judgment for plaintiff on a theory of "vouching in”, Wayne Circuit Court, Thomas J. Foley, J. Defendant appeals. Held:

    The "vouching in” theory was applicable because the warranty by Ford Motor Company to the purchaser of its product was the same as the warranty extended to Ford by Bendix on the steering mechanism assembly, a portion of which was furnished by Bendix, and the claim in the personal injury action was limited to that portion of the steering mechanism assembly and because Ford had made a tender of an opportunity to defend. The tender was timely as Bendix had participated in the trial preparation up until the day before settling with the underlying plaintiff.
    Affirmed.
    1. Judgment—Breach of Warranty—Vendor—Tender of Defense.
    Judgment in action for breach of warranty by subvendee against vendee, in which vendor was tendered the defense, is binding against vendor, in action by vendee, on issues litigated in first action as to breach of warranty and the resultant damages where the quality or condition of the article has not changed in passing from vendor to vendee and ultimately to subvendee, and the warranties of quality between the parties are the same.
    References for Points in Headnotes

       67 Am Jur 2d, Sales § 727.

       61 Am Jur 2d, Pleading § 3.

      2. Action—Products Liability—Breach op Warranty—Tender of Defense—Timely Tender.
    The tender of the defense of a personal injury-breach of warranty action to a vendor by a vendee was timely, even though the tender was made five days prior to the trial in the personal injury action in which both vendor and vendee were originally defendants, where the vendor was thoroughly prepared on the issue being litigated and was on notice of all claims asserted because it had settled with the plaintiff in the personal injury action only the day before the tender was made.

      John N. Highland, for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper (by Sharon C. Ranucci) and Peterson, Ross, Rall, Barber & Seidel (by Louis C. Roberts) of counsel, for defendant.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   Beasley, J.

Plaintiff seeks indemnification from defendant arising out of a jury verdict against plaintiff in the amount of $350,000 in a personal injury case. The trial court granted summary judgment to plaintiff in the sum of $400,227.38, that being the sum paid by. plaintiff to satisfy the personal injury judgment together with costs and fees. The trial judge’s written opinion indicates the summary judgment was based on a theory of "vouching in”, i.e., defendant was bound by the facts established in the personal injury action and those facts entitle plaintiff to indemnification as a matter of law. Defendant appeals as a matter of right.

Defendant claims that, for two reasons, the doctrine of "vouching in” was inapplicable here. First, defendant says the identity of interest necessary to application of vouching in was lacking. In support, defendant claims plaintiff was sued on separate counts of both breach of warranty and negligence. This means the injured car purchaser could have recovered on a negligence theory and not on a breach of warranty theory, in which case, vouching in would not be applicable. Second, defendant says plaintiffs warranties to the purchaser of the car ran not only to the portion of the power steering mechanism manufactured by defendant, but also to the whole car. Defendant’s point in this regard is that the car purchaser could have recovered on a theory of breach of warranty respecting a part other than the portion of the power steering mechanism furnished by defendant.

These claims do not pass muster. In the personal injury action, the car purchaser specifically alleged that Bendix Corporation manufactured the portion of the steering mechanism which was allegedly defective and the proximate cause of the accident. No change appears to have been made by Ford Motor Company in the steering mechanism assembly parts furnished by defendant. The warranty relied upon by the car purchaser did not differ from the warranty given by defendant to plaintiff.

While plaintiff warranted the entire car to its purchaser, the claims both here and in the personal injury case were limited to the portion of the steering mechanism assembly furnished by defendant.

In the personal injury case, the negligence count was abandoned and the case went to the jury only on the implied warranty count. Morse Chain Co v Formsprag Co, 380 Mich 475, 481; 157 NW2d 244 (1968), is controlling of these issues. In Morse, the Court said:

"We think it is the law that with respect to articles in which the quality or condition has not changed in passing from the hands of the vendor to vendee (which did not occur here at all) and ultimately to the subvendee, when the warranties of quality between the respective parties were the same, the judgment in suit for breach thereof by subvendee against the vendee in which the vendor was tendered the defense, is binding against the vendor, in a suit by vendee, on the issues litigated in the first suit as to such breach of warranty and the resultant damages.”

Last, defendant claims plaintiffs tender of suit was unseasonable and unreasonable under the Uniform Commercial Code. Defendant claims the tender came only five days before trial of the personal injury case. Defendant refused the tender of defense and chose not to defend the product liability case. While, in many situations, five days notice might be insufficient, in this case, defendant had been on notice for over a year of the alleged manufacturing defect and had participated in discovery.

Defendant settled the day before receiving the tender of defense. It seems clear defendant was thoroughly prepared on the very issue that was litigated and was on notice of all claims asserted. For these reasons, we find that plaintiff’s tender of suit was seasonable and reasonable whether considered in view of the requirements of the common law doctrine of "vouching in” or the codification of that doctrine in the Uniform Commercial Code. We decline to find that the tender of defense was not timely given.

We are satisfied that in accordance with Morse, defendant was properly vouched in. The judgment entered on the jury’s verdict in the personal injury case against this plaintiff, including the findings implicit therein, is binding against defendant in the within case. This defendant is not entitled to relitigate those issues here. The grant of summary judgment in favor of plaintiff was not clearly erroneous.

Affirmed, with costs.

       One week before the personal injury trial, Bendix settled with the car purchaser for $49,000.

        See, MCL 440.2607; MSA 19.2607 and MCL 440.1204; MSA 19.1204.

       Plaintiffs letter, dated May 16, 1973, stated:
      "I have been instructed by Ford Motor Company to advise you as the attorney for Bendix that, in the event that trial of this matter results in judgment against Ford, that Ford Motor Company will seek indemnity against Bendix for the judgment it is ultimately required to pay, together with attorney fees and other trial expenses.
      "While I realize that it is close to the trial date, I also know that you have done most of any necessary trial preparation, in anticipation of defending the case for Bendix, even though I now understand the suit against Bendix by the plaintiff has been settled. If it is Bendix’ desire to do so, it or you as its attorneys may assume the defense of the pending suit against Ford, in which event I will, of course, as will Ford and its employees and expert witnesses, cooperate fully.”

       MCL 440.2607(5)(a); MSA 19.2607(5)(a). The Uniform Commercial Code practice commentary prepared by the able and experienced Professor Roy L. Steinheimer, Jr., states:
      “Subsection 2607(5)(a) sets up a statutory procedure for 'vouching in’ a seller who is answerable over to a buyer for a breach of warranty or other obligation on which the buyer is being sued by a subsequent buyer. This is an improvement on the common law 'vouching’ procedures recognized by the Michigan decisions.” 21 MCLA p 586.


author: Danhof, C. J. H. L. Heading, J.

text:
    MARTIN v COFFEY
    Docket No. 77-694.
    Submitted October 13, 1977, at Lansing.
    Decided May 8, 1978.
    In 1962 the prosecuting attorney of Jackson County brought a paternity action on behalf of Doris Martin against Clyde Coffey which resulted in an order of support. On September 2, 1969, an order was entered in settlement of arrearages from the prior order and settling all past, present and future support obligations. This order was approved by plaintiff but not by the prosecutor and no notice of that order was given to the prosecutor or Department of Social Services. Subsequently, plaintiff Doris Martin began receiving public assistance, and the prosecutor initiated the instant action for her under the Uniform Reciprocal Enforcement of Support Act at the request of the Department of Social Services. Defendant moved to quash, alleging that the action was barred by the prior settlement order. In response, plaintiff moved to modify the settlement order. The Jackson Circuit Court, Charles J. Falahee, J., denied plaintiffs motion and granted defendant’s motion to quash. Plaintiff appeals. Held:

    1. Failure to set out in the petition under the Uniform Reciprocal Enforcement of Support Act a prior settlement agreement discharging arrearage and future support obligations under the Paternity Act is failure to set forth "all other pertinent information” as required by the act, and such a petition is properly quashed.
    Affirmed.
    H. L. Heading, J., dissented. He would hold that the law applicable to a determination of the respondent’s duty of support under the Uniform Reciprocal Enforcement of Support Act is that of the responding state, and that a determination by a Michigan court that defendant’s duty of support had been met is not binding upon the court of the responding state.

      References for Points in Headnotes

       23 Am Jur 2d, Desertion and Nonsupport § 128 et seq.

    59 Am Jur 2d, Parent and Child § 53.
    Construction and application of state statutes providing for reciprocal enforcement of duty to support dependents. 42 ALR2d 768.

       23 Am Jur 2d, Desertion and Nonsupport §§ 128, 131-133, 153.

       23 Am Jur 2d, Desertion and Nonsupport §§ 128, 132, 136, 137, 141.

       23 Am. Jur 2d, Desertion and Nonsupport §§ 126-128, 131-133.

      Opinion of the Court
    1. Parent and Child—Statutes—Uniform Reciprocal Enforcement of Support Act.
    Failure to set out in a petition for relief under the Uniform Reciprocal Enforcement of Support Act alleging an arrearage in payment of an order of support granted under the Paternity Act that an order had been subsequently entered settling arrearages and future support is failure to set out "all other pertinent information” as required by the former act, and a petition lacking such pertinent information is properly quashed upon motion by the nonresident spouse (MCL 780.161; MSA 25.225[11]).
    Dissent by H. L. Heading, J.
    2. Parent and Child—Statutes—Uniform Reciprocal Enforcement of Support Act—Duty of Support.

      The duties of support enforceable under the Uniform Reciprocal Enforcement of Support Act are those imposed under the laws of the state where the alleged obligor was present during the period for which the support is sought (MCL 780.158; MSA 25.225[8]).

    3. Parent and Child—Statutes—Uniform Reciprocal Enforcement of Support Act.

      Among the duties of a court of this state, acting as the initiating state, is the duty to certify a petition under the Uniform Reciprocal Enforcement of Support Act to the responding state if it finds that the petition sets forth facts from which it may be determined that the respondent owes a duty of support and that a court of the responding state may obtain jurisdiction over the respondent or his property (MCL 780.162; MSA 25.225[12]).

    4. Parent and Child—Statutes—Uniform Reciprocal Enforcement of Support Act—Duty of Support—Conflict of Laws.

      The support determination of a court of another jurisdiction is not binding on courts of the responding state even where the determination is that the support obligation is terminated, in view of the statutory provision that the applicable law is that

      of the responding state and that the Uniform Reciprocal Enforcement of Support Act is cumulative of other remedies.

      Edward Grant, Prosecuting Attorney, and James O. Marks, Assistant Prosecuting Attorney, for the plaintiff.
    Before: Danhof, C. J., and Allen and H. L. Heading, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Danhof, C. J.

This appeal concerns a proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), MCL 780.151 et seq.; MSA 25.225(1) et seq. Plaintiff appeals from the trial court’s order quashing her petition for support under URESA.

Plaintiff, a Michigan resident, sought to utilize the URESA to enforce a purported obligation of support owed by defendant, a Texas resident, to the parties’ child, as established by a prior order of support entered as a result of an action under the Paternity Act, MCL 722.711 et seq; MSA 25.491 et seq. Because plaintiff relies on this order and because no marriage or divorce is involved, the divorce case law relied upon by the dissent, does not have application in the instant case. We note also that while URESA provides additional retnedies it does not independently create any duty of support.

Under URESA, once a petition has been presented to an initiating court setting out facts from which a duty of support may be found and the initiating court has certified this petition to the responding state court, the defendant should present any defenses in the responding state court which then determines the existence and extent of any support obligation. In the instant case plaintiff filed a URESA petition in the lower court. The petition stated that paternity hád been established in 1963. This petition was certified to the appropriate Texas court. Defendant then moved in the Michigan court to quash the petition.

URESA provides in part that:

"The petition shall be verified and shall state the name and, so far as known to the petitioner, the addresses and circumstances of the respondent, his dependents for whom support is sought and all other pertinent information.” (Emphasis added.) MCL 780.161; MSA 25.225(11).

We believe that the petition in this case was properly quashed because it failed to set out "other pertinent information”.

The Paternity Act reads in part:

"Sec. 3. (a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.
"(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.” (Emphasis added.) MCL 722.713; MSA 25.493.

In light of this Paternity Act provision, the 1969 agreement between the parties, approved by the circuit court, discharging defendant’s support obligation must be considered "other pertinent information”, however, no mention of this agreement was made in the URESA petition filed by plaintiff. Consequently, we affirm the quashing of plaintiffs original URESA petition but do so without prejudice to plaintiffs filing of another URESA petition fully setting out the pertinent information. We state no opinion as to whether or not MCL 722.7130b); MSA 25.4930b) necessarily precludes action under URESA on the facts of this case.

Affirmed. No costs.

Allen, J., concurred.

H. L. Heading, J.

(dissenting). The factual background for this action is as follows: In 1962 the prosecuting attorney brought on behalf of plaintiff a paternity action against defendant which resulted in an order for support being entered in Jackson County Circuit Court. Defendant failed to comply with that order, and eventually accumulated arrearages of $1,082. On September 2, 1969, an order was entered in the trial court in settlement of the arrearages which provided that defendant would pay to plaintiff the sum of $1,000 for all past, present and future support. The order was approved by plaintiff, but not by the prosecutor, and no notice of the settlement was apparently given either to the prosecutor’s office or to the Department of Social Services.

Subsequently, plaintiff began receiving public assistance, and the prosecutor initiated the instant action at the request of the Department of Social Services. Defendant filed a motion to quash, alleging that the action was barred by the settlement order. The prosecutor filed on plaintiff’s behalf a motion to modify the settlement order entered previously. Both motions were heard on January 28, 1977. The trial court, taking judicial notice of the settlement order releasing defendant from future liability for support, granted defendant’s motion, denied plaintiffs motion, and ordered the prosecutor to proceed no further with the action. This appeal followed.

Plaintiff contends that the trial court’s action amounted to a ruling on the substantive issue of defendant’s duty of support, a matter which must be determined by the appropriate court in the responding state, in this case Texas. She further alleges that a court of the responding state may make an independent determination under the Uniform Reciprocal Enforcement of Support Act (URESA), MCL 780.151 et seq.; MSA 25.225(1) et seq., of defendant’s duty of support, notwithstanding any existing judgment or order in the initiating or any other state.

Relevant portions of the Michigan statute include MCL 780.158; MSA 25.225(8), which provides in pertinent part:

"Duties of support enforceable under this law are those imposed * * * under the laws of any state where the alleged obligor was present during the period for which support is sought.”

Among the duties of the initiating state, set forth in MCL 780.162; MSA 25.225(12) is the following:

"If the court of this state, acting as an initiating state, ñnds that the petition sets forth facts from which it may be determined that the respondent owes a duty of support and that a court of the responding state may obtain jurisdiction of the respondent or his property, he shall so certify * * * to the court in the responding state.” (Emphasis supplied.)

In addition, MCL 780.154; MSA 25.225(4) provides:

"The remedies herein provided are in addition to and not in substitution for any other remedies.”

Although this is apparently a case of first impression in Michigan, other jurisdictions have faced somewhat similar questions under URESA. In Olson v Olson, 534 SW2d 526 (Mo App, 1976), the Missouri court held that an action under URESA was separate from and independent of a previous determination of support in a foreign divorce decree, and the existence of a prior support order did not bar an action under URESA. Noting that many states had construed the act to permit the responding state to make a new determination of support, the court said:

"Consideration of URESL as a whole, and the judicial opinions construing it, lead to the conclusion that the court in the responding state may make its own determination of the needs of the party invoking URESL and has the power to make such support orders as justice requires; that if the evidence in a URESL case entitles petitioner to an award of child support greater than that granted in a prior divorce decree the required payments may be increased in the court of the responding state, and a prior foreign decree awarding a lesser sum does not bar such relief.” Olson, supra, at 531.

Accord, Hudak v Hudak, 74 Misc 2d 1095; 346 NYS2d 161 (1973).

In view of the statutory provisions that the applicable law is that of the responding state and that URESA is cumulative of other remedies, it seems most reasonable to hold that the support determination of the court of another jurisdiction is not binding on courts of the responding state even where, as in the case before us, the determination is that the support obligation is terminated. This result is consistent with the policy that a child is entitled to support from her natural parent, Ebel v Brown, 70 Mich App 705; 246 NW2d 379 (1976).

Additionally, I note that public policy dictates that private agreements, even those incorporated into an order of the court, not be permitted to abrogate duties imposed by law, Ydrogo v Ydrogo, 332 Mich 530; 52 NW2d 345 (1952), Barfield v Harrison, 101 Ga App 497; 114 SE2d 302 (1960).

I would reverse and remand for further proceedings.


author: R. M. Maher, J.

text:
    PEOPLE v BEAMON
    Docket No. 77-822.
    Submitted February 9, 1978, at Detroit.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Jessie Beamon was charged with first-degree murder. He was twice tried on this charge, both trials ending in mistrial. Prior to a third trial defendant was sentenced on another offense to a term in Federal prison in Indiana. Defendant was transferred pursuant to a writ of habeas corpus ad prosequendum to Detroit Recorder’s Court to stand trial a third time. This trial also ended in mistrial, and defendant was returned to the Federal prison. Defendant requested of Federal authorities that any subsequent request for transfer of him to Detroit Recorder’s Court for trial be denied because of failure to comply with the interstate agreement on detainers act. Another writ of habeas corpus ad prosequendum was issued, and defendant was returned to Michigan for a fourth trial on the murder charge. Defendant moved for dismissal, alleging failure to comply with the detainers act. The Recorder’s Court of Detroit, George W. Crockett, Jr., J., dismissed the information. The people appeal, asserting that there was no violation of the detainers act. Held:

    1. The provision of the interstate agreement on detainers act which guarantees a prisoner a trial on any untried indictment, information or complaint which is the subject of a detainer lodged against him within 180 days of the prisoner’s demand for disposition is not invoked by a mere motion for a speedy trial.
    2. The detainers act requirement that a defendant must be brought to trial means only that a proceeding must be initiated within the 180-day period, not that the case be finally disposed of.
    3. The defendant was not granted a required 30-day period in which to challenge a detainer before being brought to trial.
    4. A letter from the clerk of Recorder’s Court to the Federal prison authorities conformed to the definition of a detainer and could therefore be considered a detainer for purposes of the detainers act. A writ of habeas corpus ad prosequendum is a detainer.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 245, 253, 254.

       21 Am Jur 2d, Criminal Law §§ 249, 250.

       21 Am Jur 2d, Criminal Law § 255.

      5. The information against defendant was properly dismissed because of a mandate of the act requiring dismissal if a prisoner is returned to the place of incarceration without a final disposition of the charges against him, as happened here when the third trial ended in a mistrial.
    Affirmed.
    1. Criminal Law—Interstate Agreement on Detainers—Demand for Trial—Motion for Speedy Trial—Statutes.
    A prisoner may, under the provisions of the interstate agreement on detainers act, demand to be brought to trial within 180 days on any untried indictment, information or complaint which is the basis for a detainer lodged against him; the act explains specifically the actions a defendant must take, however, and a mere motion for speedy trial does not constitute the requisite request to dispose of such detainers (MCL 780.601 et seq.; MSA 4.147[1] et seq.).

    2. Criminal Law—Interstate Agreement on Detainers—Demand for Trial—Statutes.
    A provision of the interstate agreement on detainers act which states that a defendant must be "brought to trial” within 180 days after he or she sends the required notice and demand for disposition means only that a proceeding must be initiated, not that the case be finally disposed of (MCL 780.601; MSA 4.147[1]).
    3. Criminal Law—Interstate Agreement on Detainers—Statutes —Dismissal of Charges.
    The purpose of the interstate agreement on detainers act is to eliminate the shuttling of prisoners back and forth between jurisdictions and to encourage the expeditious and orderly disposition of charges outstanding against prisoners; therefore, a section of the act which provides that if a trial of a prisoner who has been transferred pursuant to a detainer is not had before the prisoner is returned to the original place of imprisonment those charges must be dismissed is satisfied only by a complete trial with some final verdict (MCL 780.601; MSA 4.147[1]).
    4. Criminal Law—Detainers—Statutes—Interstate Agreement on Detainers.
    The word "detainer”, as used in the interstate agreement on detainers act, means a notification filed with the institution in which a prisoner is serving a sentence advising that the prisoner is wanted to face pending criminal charges in another jurisdiction; a letter from the clerk of Detroit Recorder’s Court to officials of a Federal penitentiary indicating that a prisoner was wanted to face charges in Michigan and advising the penitentiary to contact the court of the judge before whom the prisoner was to be tried, though not a formal document, was sufficient to constitute a detainer (MCL 780.601; MSA 4.147[1]).
    5. Criminal Law—Detainers—Statutes—Habeas Corpus ad Prosequendum.
    A writ of habeas corpus ad prosequendum is a detainer for purposes of the interstate agreement on detainers act (MCL 780.601; MSA 4.147[1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: M. J. Kelly, P. J., and T. M. Burns and R. M. Maher, JJ.
   R. M. Maher, J.

Defendant was charged, on May 25, 1973, with first-degree murder. He was tried twice upon this information and both trials ended in a declaration of mistrial by the trial court when the jury could not agree upon a verdict. On August 2, 1974, after the second mistrial, defendant was released on bond of $250. While at large on bail, defendant was convicted in United States District Court of a Federal crime. On April 9, 1975, he was sentenced to a term of 5 years in the Federal prison in Terre Haute, Indiana.

In the meantime, a third trial on the state murder charge was repeatedly delayed until trial was finally set for June 2, 1976. On May 5, 1976, defendant filed a motion to dismiss for want of prosecution, alleging that he had been denied his right to a speedy trial.

Before the motion was filed, the administrator of the Federal prison in Terre Haute, on May 3, 1976, sent a letter to the clerk of Recorder’s Court informing the court of the status of defendant. On May 11, the court clerk responded to the Federal prison, stating that defendant had a June 2, 1976, trial date and referring the Federal authorities to Recorder’s Court Judge Elvin Davenport for further information.

On May 24, 1976, a writ of habeas corpus ad prosequendum was issued, signed by Judge Joseph Gillis of Detroit Recorder’s Court. The writ directed authorities at the Federal penitentiary in Terre Haute to return defendant to Michigan for a third trial in Recorder’s Court on the information charging first-degree murder.

Defendant was released from the Federal prison on June 1 for a June 2 trial date. Defendant’s file also includes records from the Federal prison, disclosing that while defendant was released to Michigan authorities June 1 on the basis of the writ, a "detainer” was not placed on defendant until June 3, 1976, two days after he had been sent to Michigan.

Following the transfer of temporary custody, defendant was placed on trial in Detroit Recorder’s Court on June 2, 1976. The trial was terminated by the trial court’s declaration of a mistrial on June 9, 1976.

On June 17, a new trial date was set for October 6, 1976. The Recorder’s Court discharged the writ of habeas corpus ad prosequendum and the Federal authorities then returned defendant to the custody of the Federal penitentiary at Terre Haute, Indiana.

Some time later, apparently on September 29, 1976, the Michigan authorities again issued a writ of habeas corpus ad prosequendum for the return of the defendant from the Federal penitentiary at Terre Haute to the city of Detroit to stand trial for the fourth time on the information charging defendant with murder of the first degree. The second writ was honored by the Federal authorities and defendant was transported and transferred from the Federal penitentiary to the State of Michigan a second time.

Defendant had, in the intervening time, requested administrative relief from the Federal prison authorities, asking that any subsequent writ from the Michigan officials be denied for failure to comply with the interstate agreement on detainers act. The request was denied and defendant advised to seek relief in the courts or appeal to the Regional Director of the Federal Bureau of Prisons.

After the October 6 trial date was postponed, the defendant filed a motion, on October 29, 1976, to dismiss for loss of jurisdiction, alleging noncompliance with the interstate agreement on detainers act. On December 15, 1976, defendant filed a motion to dismiss, again alleging failure to comply with the detainers act.

A hearing was held on defendant’s motion, after which the information was dismissed. The trial judge also stayed the order, pending the prosecutor’s appeal of the dismissal. This appeal is brought by the prosecutor from the trial court’s dismissal of the first-degree murder information.

The trial court, in its February 3, 1977, ruling, dismissed the information on the grounds that the 180-day rule of Article III(a) of the interstate agreement on detainers act, MCL 780.601 et seq.; MSA 4.147(1) et seq., had been violated. The act is a uniform law enacted by 46 states, the District of Columbia, and the Federal government to facilitate the disposition of charges in one jurisdiction when the accused is incarcerated in another jurisdiction.

To prevent abuses and to protect the constitutional right to a speedy trial, the act contains strict guidelines on the manner and time in which the detainer provisions are to be enforced. Article III of the act provides a prisoner with a procedure for bringing about a prompt disposition of detainers placed against a defendant. Article III(a) states:

"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.” (Emphasis supplied.)

The act thus provides that a prisoner can demand to be brought to trial within 180 days on any untried indictment, information or complaint which is the basis for a detainer lodged against him. Article III furnishes a mechanism, capable of being invoked by a prisoner, to insure the constitutional guarantee of a speedy trial.

The trial court in the case at bar erred, however, when it held that a motion for speedy trial, such as defendant made on May 5, 1976, which made no mention of the detainer act, substantially complied with Article III. While the provisions of the act may guarantee a speedy trial, a mere motion for speedy trial does not constitute the requisite request to dispose of detainers lodged against defendant which exceeded the 180-day provision. The act explains specifically in Article III the actions a defendant must take to initiate the procedures in the statute. A speedy trial motion is an inadequate measure with which to invoke the protection of the act.

"The Agreement provides that all charges must be dismissed if a prisoner is not brought to trial within 180 days after he invokes his rights under Article III. Since this provision places an additional burden on the prosecuting authorities, it is fair to insist that the prisoner satisfy the preliminary requirements * * *. In order to insure that all parties concerned have a fair opportunity to protect their rights, the Agreement requires that a prisoner be informed of his rights under the Agreement and that he inform both the prosecuting attorney and the trial court of his whereabouts and his invocation of Article III procedures.” Edmond v Department of Corrections, 78 Mich App 196, 203; 259 NW2d 423 (1977).

In Edmond, the defendant filed a motion for a speedy trial but refused a direct offer to make a request for trial under Article III. While the Court conceded the possibility that something less than perfect compliance might be sufficient in some cases, it held that "the plaintiff did not sufficiently comply with the requirements of Article III * * * to qualify under a substantial compliance standard”. 78 Mich App at 203.

In People v Butcher, 46 Mich App 40; 207 NW2d 430 (1973), the Court found that for purposes of the act a request for a speedy trial was deficient.

"Defendant next claims that the trial court had no jurisdiction to try the defendant because the proceedings violated the interstate agreement on detainers act, MCLA 780.601; MSA 4.147(1), since he was not tried within 180 days of his request for trial. Assuming the act to be applicable, to hold that defense counsel’s alleged request for a speedy trial made in pretrial conference on February 22, 1971, substantially complied with the act would emasculate the act’s rather specific notice requirements.” 46 Mich App at 44.

Under both Edmond and Butcher, the trial court in the instant case was wrong in holding that the motion limited to the constitutional right of a speedy trial invoked the running of the 180-day provision.

Were we, nevertheless, to assume that the 180-day period allowed in the act began to run as of the date of the speedy trial motion, there was no violation of the rule. The statute states that a defendant must be "brought to trial” within 180 days after he or she sends the required notice and demand for disposition. A trial was commenced on June 2, 1976, less than one month after the speedy trial motion. Defendant contends that the act requires a full trial, resulting in some verdict, be had by the end of the 180 days. We cannot agree.

The words "brought to trial” mean only that a proceeding must be initiated, not that the case be finally disposed of. A proceeding was commenced within a month of the speedy trial motion. Assuming arguendo that the speedy trial motion was sufficient to trigger the 180-day rule of Article III, there was no violation of the rule.

Defendant also alleges a violation of Article IV(a) which provides:

"(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: And provided further, That there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. ” (Emphasis supplied.)

The trial court did not rule on the error alleged as to IV(a).

Defendant claims he was not granted the required 30-day period. The records of the Federal prison show that while defendant was released on June 1 apparently on the basis of the May 24 writ the actual detainer was not filed until June 3, two days after defendant’s release. If we consider the writ to be the request for temporary custody, at most six or seven days elapsed from the date of the request to the date of the release honoring that request. Even if, as is discussed infra, we consider the May 11 letter from the clerk of Recorder’s Court to Federal prison officials in Terre Haute to be the request for temporary custody, defendant was not given the statutorily mandated 30-day period in which to challenge the detainer.

The issue remaining is whether defendant, having been returned to prison following the third mistrial, could, under the statute, be subjected to a second detainer to effectuate the fourth retrial.

Article IV(e) of the act reads:

"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”'

The prosecutor first argues that, assuming the writ to procure defendant’s presence in Michigan was a detainer, Article IV(e) of the act was not violated since defendant was tried before he was returned. In light of the purposes of the act, we find the prosecutor’s contention untenable. The act is designed to eliminate the shuttling of prisoners back and forth between jurisdictions, a practice which disrupts parole and incarceration arrangements and makes the prisoner’s status uncertain. The act is intended to encourage the expeditious and orderly disposition of charges outstanding against prisoners and to determine the proper status of any and all detainers based on untried indictments, informations, or complaints.

It is inconsistent with these announced purposes to allow Article IV(e) to be satisfied by something short of a final disposition. A trial without some final verdict is unacceptable. Continual retrials, as in this case, can only produce the shuttling back and forth and the uncertainty of a prisoner’s status which the act seeks to avoid. "If trial is not had” must therefore mean a trial which ends in a final verdict, whereby a prisoner can be certain of his status and the status of the charges against him.

In the alternative the prosecution has argued, with support from various Federal circuit courts, that multiple transfers are satisfactory when the mechanism used to gain the transfer is a writ of habeas corpus ad prosequendum. In the instant case, the prosecution claims, defendant’s transfer for the third retrial and the fourth retrial was effected not by a detainer, but by writs which, the prosecution claims, are not detainers.

We find two problems with the prosecution’s analysis. The first is whether, in fact, the third transfer of defendant on June 1, 1976, was effected by a writ or instead by a detainer letter sent on May 11 by the clerk of the Recorder’s Court. That letter was sent in response to a letter from the administrator of the Federal prison in Terre Haute which had informed the clerk of Recorder’s Court of defendant’s status. In his letter, the clerk of Recorder’s Court stated:

"I have received your letter dated May 3, 1976 regarding the above named defendant.
"Please be advised that our computor [sic] whows a Jessie L. Beamon, case #73-03712 arrested for Murder First Degree. Mr. Beamon, if he is the same, has a Trial set for June 2, 1976 before Judge Elvin Davenport.
"Please notify Judge Davenport’s Court for further information.
"Thank you in advance for your cooperation.”

The word "detainer”, as it is used in the agreement, is "a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction”. See Senate Report 91-1356, 91st Cong, 2d Sess, 3 US Code Cong & Admin News, p 4865 (1970).

The letter from the clerk of Recorder’s Court to the Terre Haute officials, though not as formal as some documents, conforms to this definition of detainer. It advises the officials at the Federal penitentiary that Jessie Beamon is wanted to face a charge of murder in the first degree in the State of Michigan. It instructs the officials to contact the court of the judge before whom defendant was to be tried for further information. We believe the letter of May 11, 1976, constituted a detainer and was sufficient to act as the means by which defendant’s transfer from Indiana to Michigan was effected.

There is a second problem with the prosecutor’s alternative argument. Were we to disregard the letter from the clerk of Recorder’s Court, we in any event hold that the writ of habeas corpus ad prosequendum is a detainer. We are not unmindful that certain of the Federal courts of appeal disagree with our conclusion. See Ridgeway v United States, 558 F2d 357 (CA 6, 1977), United States v Scallion, 548 F2d 1168 (CA 5, 1977). But we are likewise aware that other circuits have held a writ of habeas corpus ad prosequendum does constitute a detainer. See United States v Mauro, 544 F2d 588 (CA 2, 1976), United States v Sorrell, 562 F2d 227 (CA 3, 1977). We must agree with the Second and Third Circuits.

We turn for guidance to the definition of detainer employed when the Interstate Agreement on Detainers Bill was introduced in Congress. Representative Kastenmeier made clear then that a detainer is simply a notice filed with the confining institution that criminal charges from another jurisdiction were outstanding and that the prisoner was wanted in order to stand trial on those charges. 116 Cong Rec 13999 (1970) (remarks of Rep. Kastenmeier).

A writ of habeas corpus ad prosequendum conforms to this definition. The writ is a detainer. Were it not, the section of the law at issue, Article IV(e), permitting only one rendition, would be meaningless. United States ex rel Esola v Groomes, 520 F2d 830, 837 (CA 3, 1975). A party to the agreement could simply avoid the requirements of the act by issuing a writ of habeas corpus instead of a detainer.

One of the aims of the agreement, aside from the expeditious disposition of pending charges in another jurisdiction, is elimination of the uncertainties which obstruct programs of prisoner treatment and rehabilitation.

"Sometimes [before the detainer act] the prisoner would automatically be held under maximum security. Sometimes he would be ineligible for special work programs, athletic programs, release for visits to relatives’ death beds or funerals, or special minimum security facilities. Often detainers precluded the granting of parole * * * parole boards and prison authorities found it difficult to formulate the prisoner’s rehabilitative program, since they were forced to act without knowing whether the prisoner would be convicted on the other pending charges.” United States v Ford, 550 F2d 732, 737-739 (CA 2, 1977).

A writ of habeas corpus produces the same results as the "detainers” described in Ford. We are in accord with the words of the Second Circuit in United States v Mauro, supra.

"[T]he Agreement was plainly designed to avoid the shuttling of prisoners back and forth between the penal institutions of the two jurisdictions. The disruptive effect upon the prisoner’s morale is the same irrespective of the caption on the paper which produces him in the jurisdiction seeking him for trial.” 544 F2d at 593.

Whether a prisoner’s transfer is effected by a "detainer” or by a writ of habeas corpus ad prosequendum, the underlying effect, as Mauro asserts, is the same on the prisoner. It is contrary to the sense and spirit of the act and incompatible with the congressional purpose in enacting the statute not to deem the writ a detainer.

We conclude that a detainer was lodged against defendant, both by the letter from the clerk of Recorder’s Court to officials at the Federal prison in Terre Haute and by the writ of habeas corpus ad prosequendum. After the first detainer was lodged a trial reaching a final verdict was not had before defendant was returned to the original place of imprisonment. Accordingly, under Article IV(e) of the act, the information against defendant was not of any further force or effect and should have been dismissed with prejudice. Defendant should not have been returned to Michigan for a fourth retrial on the same information after he was transferred back to Terre Haute. Though for the wrong reason, the trial judge was correct in dismissing the information.

Affirmed.