106 Mich. 514 | Mich. | 1895
Action on the supersedeas bond given on the appeal of the case of Busch v. Wilcox, which is reported in 82 Mich. 315. That action was based upon an alleged fraudulent representation concerning the subject-matter of a logging contract, and in the action plaintiff recovered a verdict of $5,000, which was, on appeal to this court, affirmed. The defendants in this action on the bond undertook to set off, against the claim of the plaintiff, a demand due defendant Wilcox arising out of the same contract, and consisting of a claim for overpayment made by Wilcox to Busch, while he (Busch) was engaged in the performance of the contract. The plaintiff contends that this claim of set-off is barred by the previous judgment in the fraud case, and, further, that, if it should be held that that judgment does not preclude the defendant, his claim was barred by the statute of limitations before this suit was brought.
1. It appears that on the trial of the fraud case the court instructed the jury as follows:
“Some evidence has been introduced that Mr. Wilcox paid Mr. Busch more than the contract price of the logs put in, and it is conceded by counsel for both parties that, since the present action was commenced, Mr. Wilcox has sued Mr. Busch to recover back such’ overpayments, if made. Another jury in the other case will pass upon that, and allow Mr. Wilcox with interest, — that is, if he is entitled thereto; and you, therefore, should not attempt to deduct the amount of such overpayments from the damages you find, if you find Mr. Busch is entitled to any.”
This must be treated as the rule established for this case. The plaintiff having had the benefit of that rule, it would be grossly inequitable for him to be permitted to now assert that his damages, which he recovered under that ruling, were excessive, and should have been reduced by, the amount of defendant’s claim, and- that, as they were not, the claim is barred. See Michels v. Olmstead, 157 U. S. 198; Philadelphia, etc., R. Co. v. Howard, 13 How. 307; Davis v. Wakelee, 156 U. S. 680; Busch v. Jones, 94 Mich. 223.
2. 2 How. Stat. § 8731, reads:
‘iA.ll the provisions of this chapter [relative to limitations of personal actions] shall apply to the case of any debt or contract alleged by way of set-off on the part of a defendant, and the time of the limitation of such debt shall be computed in like manner as if an action had been commenced therefor at the time when the plaintiff’s action was commenced, provided such debt or contract would have been barred according to law before the accruing of the claim or demand upon which such defendant is sued.”
Under the terms of this statute, the claim of defendant is barred if the period of limitation had run against it before the accruing of the cause of action upon which the plaintiff brings suit, and not otherwise. The only two questions material to be considered, therefore, in determining whether the statute bars the claim, are when the plaintiff’s cause of action accrued, and when the defendant’s cause of action matured.
By the terms of the logging contract between Busch and Wilcox, the logs were to be scaled on the skids, but there was testimony tending to show that, after the work was entered upon, that agreement was modified, and it was agreed that the amount of the lumber cut was to be
On the former hearing of this case, reported in 94 Mich. 223, under the title of Busch v. Jones, we held that under the agreement between the parties, that Wilcox
The circuit judge charged the jury as follows:
“If the jury believe that Busch should be allowed the same as a sawmill owner, even then there was no settlement until November,1890 [1884?]; but if you believe he agreed with Hall to take the measure, and that the measure should be when it was shipped, that would be the final measure, then that would be the date of settlement."
In another portion of the charge the circuit judge said:
“The right of action upon the bond accrued upon the rendition of the judgment of affirmance in the Supreme Court, October 10,1890."
Notwithstanding these instructions, the court left it to the jury to determine whether the set-off was barred by the statute of limitations, saying that if the date of settlement was found to be July,1885, the defendant’s demand was not barred, and implying that otherwise it was.
If the circuit'judge was right in his statement that the defendant’s claim in no event accrued before November 1,
We are also of the opinion that the circuit judge was right in his statement that the plaintiff’s right of action on the supersedeas bond accrued on the rendition of the judgment in the Supreme Court, October 10, 1890. The fact that a motion for a rehearing was contemplated or made did not of itself operate to stay proceedings. Black, Judgm. § 960; Buckley v. Sutton, 38 Mich 1. The fact that costs were not then taxed does not operate to stay the right of action beyond the period in which they might have been taxed. When the costs are taxed, the taxation relates back to the date of the judgment. Hunt v. Middlesworth, 44 Mich. 448; Whelpley v. Nash, 46 Mich. 25. But it is contended that the doctrine of relation should not be applied so as to work prejudice to the rights of the party; but, on the other hand, it was within the power of the plaintiff to have caused the costs to be taxed within a very few days; and while it may be said that, until the period within which costs might have been taxed had elapsed, the statute of limitations would not begin to run, yet, as this was something within the control of the plaintiff, it ought not to be said either that he could, by his delay in
The judgment will be reversed, and a new trial ordered.