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02/10/76 G & D COMPANY v. DURAND MILLING COMPANY

February 10, 1976

G & D COMPANY
v.
DURAND MILLING COMPANY, INC.



Appeal from Huron, Arthur M. Bach, J.

Leave to appeal applied for.

N. J. Kaufman, P. J., and J. H. Gillis and M. J. Kelly, JJ. J. H. Gillis, J., concurred. M. J. Kelly, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Costs -- Damages -- Attorneys' Fees.

Attorneys' fees are generally not recoverable as an element of costs or damages.

2. Costs -- Damages -- Attorneys' Fees -- Divorce -- Partition -- Securities Act -- Mechanic's Lien -- Foreclosure -- Judgment Creditors -- Nuisance -- Pleading -- Witnesses -- Vexatious Appeals.

Michigan has provided, by statute or court rule, for the recovery of attorneys' fees in certain cases and instances, e.g. divorce or separate maintenance, partition, blue sky law suits for rescission, mechanic's liens, foreclosure by advertisement, judgment creditor proceedings, action to abate a nuisance commenced without reasonable ground or cause, opposing a summary or accelerated judgment without good faith and for delay, failure to subpoena witnesses, failure to attend deposition, refusal to admit facts and genuineness of documents, unwarranted allegations and denials, and vexatious appeals.

3. Damages -- Costs -- Attorneys' Fees -- Prior Litigation -- Torts -- Contracts.

A plaintiff may recover attorneys' fees reasonably incurred in prior litigation where the present defendant has by his wrongful conduct, be it tort or breach of contract, caused the plaintiff to defend or prosecute previous legal proceedings.

4. Damages -- Costs -- Attorneys' Fees -- Rule of Construction -- Exception to Doctrine.

A rule which permits recovery of attorneys' fees must be construed narrowly because the rule is an exception to the prevailing doctrine.

5. Damages -- Costs -- Attorneys' Fees -- Prior Litigation -- Malicious Conduct -- Breach of Warranty -- Negligence.

A defendant in a suit for breach of warranties and negligence arising out of the manufacture of defective chicken feed may not recover its attorneys' fees from a co-defendant who was found liable for all of the plaintiff's damages; the rule allowing recovery of attorneys' fees requires that the attorneys' fees be incurred in a prior action in which the person at fault was not a party, and, the rule is intended to be applied only where the person at fault is guilty of malicious, fraudulent, or similar wrongful conduct.

Dissent by M.J. Kelly, J.

6. Damages -- Costs -- Attorneys' Fees -- Prior Litigation -- Third Party.

A plaintiff may recover attorneys' fees incurred in prior litigation with a third party where the prior litigation was a result of defendant's wrongful act; the plaintiff must show (1) that he had become involved in a legal dispute either because of a breach of contract by the defendant or because of defendant's tortious conduct, (2) that the dispute was with a third party not ...


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