202 F. 901 | 6th Cir. | 1913
We find three questions of law and one of fact presented by this record. They are whether a complainant, under such a situation, may surcharge a settlement without reopening the original dispute; where the burden of proof is when the matter is reopened; whether a cross-bill was necessary; and whether the evidence justified the final conclusion of the District Judge.
“Yet, notwithstanding this certain mistake on plaintiff's part, I am much persuaded that the plaintiff ought not to recover. This is not because the mistake was not mutual. I do not understand that in such a ease as we have here it is essential that the mistake be mutual. It is because, under the circumstances, it is not equitable that plaintiff should recover. It seems to me that $1,500 is no more than plaintiff should have paid defendants in settlement. The evidence makes clear that the plaintiff was at fault. * * * It also satisfies me that plaintiff had no right to deduct most, if not all, the items which it claimed the right to deduct in both accounts from the amount due defendants. As it is, the defendants have stood more than one-half of the loss on the four shipments in question, and I think that was enough for them to stand. I am quite sure that knowledge on the part of defendants that plaintiff was advised as to the true state of the matter as to which it was mistaken would not have led them to consent to any better settlement than they did.”
It results that the decree should be affirmed, with costs.