42 Mich. 128 | Mich. | 1879
The question involved in this case is one of recoupment.
In Dune, 1877, the plaintiffs, who reside at Indianapolis, Indiana, sold to the defendant a saw-mill at the price of $550, and received in part payment therefor a real estate mortgage made by one Chase, conditioned for the payment of $270. They attempted to foreclose this mortgage, and Chase made the defense of infancy, and succeeded in establishing it and defeating the suit. Plaintiffs then brought the present suit, which counts on fraud in the defendant in representations which he made to induce them to take the mortgage. They claim as damages the amount of the mortgage and the costs of the attempted foreclosure.
In defense it is shown that the mill which was sold to defendant was not as was represented: that it was a second-hand mill, though represented to be a new one, and that its value is much less than it would have been if the assurances of the plaintiffs respecting it had been true. He therefore asks to recoup the damages suffered by him by reason of the mill not being as was represented, from any damages established by the plaintiffs. This defense is objected to; the plaintiffs insisting that in an action of tort it is not admissible to complicate the issue by the proof of another tort, thereby in effect offsetting one wrong against another. Odom v. Harrison, 1 Jones (N. C.),,402.
There • is no doubt that such a defense complicates the issue to an extent that is undesirable, and that must tend to confuse the jury by directing their attention in
■ No one questions the rule when the plaintiff sues in assumpsit. In this State, indeed, it is recognized by statute, and the benefits of recoupment are so far extended as to entitle the defendant to recover the balance when the damages proved by him exceed the demand established in favor of the plaintiff. Comp. L., § 5802. In Ward v. Fellers, 8 Mich., 281, 288, the applicability of recoupment to actions of tort was recognized, as indeed it has been generally elsewhere. But in cases of tort the damages which the defendant has suffered must often spring from some wrongful conduct of the plaintiff in the transaction on which he founds his action, and the controversy is not necessarily more complicated by reason of the defendant’s damages sounding in tort rather than in contract. In either case there would he two distinct causes of action. Thompson v. Richards, 14 Mich., 172.
It must be borne in mind that forms of action are to a large extent left to the discretion of the party bringing suit. This imposes upon courts the duty to see that the defendant is not prejudiced by one form being chosen rather than another. In the case now before us the plaintiffs might have sued in assumpsit, upon the defendant’s assurances respecting the mortgage; and had they chosen that form of action the right to recoup would probably not have been questioned. But the issues would have been as much complicated then as now; they would have been tried on the same evidence, and the jury must have found the same facts with the
The judgment must therefore be affirmed with costs.