[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 571 1. Did the trial judge err in denying plaintiff's application to amend the declaration a second time? The case was begun in April, 1923, by declaration. The following October the declaration was amended. No attempt at further amendment was made until February, 1926, when the case was about to be placed on trial. The proffered amendment attacked as fraudulent the instrument first declared upon as constituting the true contract between the parties. It was a complete change of position, and injected an entirely new issue into the case. We feel that in the furtherance of justice trial courts should give the statute of amendments liberal construction, but we are not impressed that this amendment would have accomplished such result. It cannot be said, under the circumstances, that there was an abuse of discretion on the part of the trial judge in denying this amendment. See Taylor v. Goldsmith, 228 Mich. 259.
2. Should plaintiff have been permitted to show, under the common counts for money had and received, that defendants perpetrated a fraud upon him by representing that the writing contained an agreement to deposit the money in the Russian bank in plaintiff's name and an agreement to deliver him a book evidencing such deposit in two months or return him the money?
While this question has never been squarely before this court, it has always recognized that an action to *Page 574 recover money which one has received from another and is bound to return is an equitable one, and has been liberal in permitting recovery on the common counts without special averment as to the circumstances of the money's delivery. SeeHarty v. Teagan, 150 Mich. 77, and citations, which cover most of the cases we have considered. See, also, Hicks v. Steel,126 Mich. 408; Phippen v. Morehouse, 50 Mich. 537;Angell v. Loomis, 97 Mich: 5; DeCroupet v. Frank, 212 Mich. 467, and cases. And it is here insisted by plaintiff that he should have been permitted to show the fraud claimed under the common counts as pleaded in his original declaration. But we can see no good reason why, where fraud is claimed in connection with a contract sued upon, it should not be pleaded and the opposite party informed that such is the claim. We are persuaded that this is the safer and the fairer rule and entails no task or hardship upon the pleader.
As illustrated here: The contract had always been in possession of plaintiff. After consulting with his attorney he must have known whether or not its contents were as he understood them to be. He declared on it as representing the actual agreement. Without allegation of fraud, defendants had no way of knowing of such a claim, but because of the declaration on the contract they had every right to assume that none was in fact made. The claim of fraud should have been pleaded, and the offer to show it under the common counts was properly rejected.
3. Under competent evidence, was there a question of fact for the consideration of the jury? The contract in the instant case was to transmit 5,000 rubles. There is no competent proof that it was not accomplished. On the other hand, testimony to the contrary, in the form of an acknowledgment from the Russian Commercial and Industrial Bank of the receipt *Page 575 of such remittance and its transfer to the Imperial Savings Bank, was received without objection. There was nothing for the jury to decide. Plaintiff's testimony as to the passbook and the return of the money to him, offered in variance and contradiction of the terms of the written contract, was properly excluded. The first proposition is ruled byKolodig v. Highland Park State Bank, 226 Mich. 197, and the second by Karnov v. Goldman, 229 Mich. 551.
Judgment is affirmed.
SHARPE, C.J., and BIRD, STEERE, FELLOWS, WIEST, and McDONALD, JJ., concurred. CLARK, J., did not sit.