42 Mich. 441 | Mich. | 1880
Robert Millikin, as assignee of James Millikin, brought suit upon the following writing:
“March 1, 1873. Having settled all accounts, demands and claims of every name and nature to date with James Millikin: It being understood that he receive in the final settlement with John Booth & Sons of the balance over paying up according to contract three hundred dollars from the time of the sale of the farm, being thirty-eight hundred dollars, first claims deducted, and the balance of said three hundred dollars to go to James Millikin, each having a copy.
Signed Peter Ferguson,
James Millikin.”
The defendant for some reason not explained, filed two pleas of the general issue. To one he attached a notice of set-off in terms as broad as the common money counts in assumpsit, and to the other a notice of recoupment of matters connected with the transaction in which the writing was- given.
On the trial the plaintiff gave evidence of the assignment -of the contract or writing declared upon to him, and also that at the time James Millikin was indebted to him in a sum larger than the three hundred dollars which he claimed was owing on this paper. He did not, however, show that he paid anything for the assignment, nor that any sum was agreed to be or was applied on the indebtedness of James Millikin because of it.
In defense Ferguson, who seems to have conceded that the paper made out a prima facie case against him of an indebtedness of three hundred dollars, offered to prove that all demands between him and -James Millikin, connected with the transaction referred to in the writing, were not settled, and that he had various claims against James Millikin growing out of it, which he claimed should be allowed to him. The circuit judge held that these demands could not be used in defense to a suit by ah assignee on the contract, because the recital therein of the settlement of all demands would operate, in favor of the purchaser of the contract, as an estoppel.
The circuit judge must have overlooked the fact that by failing to prove that he was a purchaser for value,
Ferguson also offered by way of set-off a joint and several note made by James Millikin and another, and a joint and several note made by the plaintiff and another, the first of which was payable to him and the other to one Hartsell or bearer, and both "of which he offered to show were owned by him when the contract was assigned to the plaintiff. The court rejected, these as set-offs, under an objection by the plaintiff that they were not proper set-off, because the pleadings contained no notice of set-off, and because under the statute (Comp. Laws, § 5796, subd. 6 and 8) joint notes could not be set off.
The notes could be made use of either as joint or as several obligations, and the defendant was therefore at liberty to make use of them in the manner proposed if the notice of set-off was sufficient. We have already said it was very broad, and it was ample for the purpose. The plaintiff seems to have understood the notice of recoupment as being a second and more restricted notice of set-off, in the nature of a bill of particulars; but in this we think he erred. The notice of set-off was in no resp'ect narrowed or restricted by it, and no bill of particulars having been called for, defendant was at liberty to prove any set-off which would be provable as a demand under the money counts in assumpsit.
It would be premature to attempt to determine now what demands upon which the defendant relies would be available to him by way of 'recoupment. The evidence appearing in the record is too imperfect to justify an opinion.
The judgment must be reversed with costs and a new trial ordered.
