
    LIGHTSTONE v. FIXEL.
    1. Pleading — Declaration — Common Counts — Motion to Dismiss.
    On a motion to dismiss on the ground that the declaration does not state a cause of action, it may not he held that the common counts in assumpsit do not state a cause of action.
    2. Same — Amendments—Common Counts Not Amended.
    Where a declaration containing special counts as well as the common counts in assumpsit was amended unnecessarily, and the amendment did not modify the common counts so as to make them rest upon the facts averred in the special counts, which did not state a cause of action, the trial judge was in error in granting defendants’ motion to dismiss on the ground that the common counts were so modified.
    Error to Wayne; Lajoie (Ernest P.), J.
    Submitted April 11, 1924.
    (Docket No. 53.)
    Decided June 2, 1924.
    Assumpsit by Eli Lightstone against Rowland Fixel and Arthur E. Fixel, copartners as Fixel & Fixel, for money had and received. From an order granting a motion to dismiss, plaintiff brings error.
    Reversed.
    
      Harold M. Skapero and Samuel Skapero, for appellant.
    
      Angelí, Turner & Dyer, for appellees.
   Clark, C. J.

Two special counts of the declaration set forth certain claimed facts. A third count is made up essentially by the common counts in assumpsit. 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 special counts. If that be true, the trial court was right in granting the motion, for the special counts do not state a cause of action. The purpose of the amendment is not clear, but it seems to have been made, unnecessarily, to negative an anticipated defense. It will serve no useful purpose to set forth either the declaration or the amendment. We think the common counts are not modified by the amendment and that, under the rule above stated, the motion should have been denied.

Order reversed, with costs to plaintiff, and cause remanded.

McDonald, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.  