Lightstone v. Fixel

Two special counts of the declaration set forth certain claimed facts. A third count is made up essentially by the common counts in assump sit. Defendants moved to dismiss on the ground that the declaration does not state a cause of action. Granting the motion is reviewed on error.

Defendants recognize the rule that on the motion to dismiss it may not be held that the common counts in assumpsit do not state a cause of action (Weston v. County of Luce, 102 Mich. 528), but they contend that, by an amendment of all three counts, the common counts were made to rest upon the facts averred in the…