138 Mich. 54 | Mich. | 1904
This case arises out of a contract whereby plaintiff agreed to build a schoolhouse for defendant. After plaintiff had completed the building, and when there was $150 of the contract price unpaid, defendant’s building committee, alleging that plaintiff had not
This suit is brought to recover the balance withdrawn in the first case, as above stated. It was commenced in justice’s court, where plaintiff recovered a judgment. It was appealed to the circuit court, and on the trial in that court defendant insisted that the principle which prevents a party splitting up an indivisible cause of action constituted a defense. The trial judge denied the application of this principle, and plaintiff obtained a verdict and judgment. Was this decision correct? It is unnecessary to determine in this case whether or not plaintiff had the right to withdraw from the consideration of the first jury his items for extras. He did not indicate, and he refused to indicate, his intention to withdraw those items. His intent was to withdraw a balance of $70, of which at least $50 was a part of an indivisible balance due on the contract. He intended, therefore, to split up an indivisible cause of action. If he recovers in this case, it must be on the ground that the law will give effect to such an intent. The principle that an indivisible cause of action cannot be split up is well settled in this court. See Dutton v. Shaw, 35 Mich. 431; Allison v. Connor, 36 Mich. 283; Milroy v. Mining Co., 43 Mich. 231; Continental Ins. Co. v. Lumber Co., 93 Mich. 139.
It is said that plaintiff had no right to assert his set-off in justice’s court, because the claim upon which he was sued was for unliquidated damages. See section 776, subd. 5, 1 Comp. Laws. But he did assert it, and thereby obtained a judgment. The present claim of the plaintiff is that his judgment was the result of an erroneous ruling. The question before us is whether that erroneous ruling lessens the effect of the judgment. It is authoritatively settled (see 2 Freeman on Judgments, § 337) that it does not.
It is said that plaintiff had a right to split up his cause of action because the justice could not, under section 4721, 2 Comp. Laws, render a judgment for more than $100. This argument is not supported by authority and is opposed to reason. It cannot be urged that, because the defendant sued him in justice’s court, the law compelled plaintiff to enforce his set-off there. Indeed, he himself contends, as above stated, that the law forbade such enforcement. We must therefore hold that plaintiff voluntarily chose to enforce his claim in the justice’s court, and it is only just that he should abide the consequences of such choice. It is no argument against this conclusion that in England there is a statute which it is held (see Webster v. Armstrong, 54 L. J. Q. B. [N. S.] 236) gives the right, after one has asserted his claim in the mayor’s court as a counterclaim to one there asserted against him, to recover the excess in another suit. We have no such statute.
It is contended that the judgment in the first suit is no bar
The judgment is reversed, and a new trial granted.