42 Mich. 30 | Mich. | 1879
Gingrass brought assumpsit to recover a balance claimed by him, the greater portion of which it appeared upon the trial had been earned under a written contract. The defendant sought to introduce as payment, rent due under the same contract from the plaintiff to the defendant, which was objected to and excluded.
In this we are of opinion the court erred. The contract provided that the plaintiff should receive one dollar and fifty cents per ton for ore delivered by him on the cars; and this was to be paid for monthly by estimate, the final settlement to be by railroad weights. The defendant agreed in this 'contract to furnish Gingrass with a barn and blacksmith shop free of charge or rent, and to put up what buildings they deemed necessary, and Gingrass agreed to pay the company monthly a reasonable rent for the same.
It cannot well be supposed either party contemplated that when the monthly estimate and settlement were made, the company should pay .in'full the amount due Gingrass for ore delivered, without deducting therefrom
The whole agreement must be considered in order to ascertain the amount due either party thereunder. It contemplated a monthly settlement, an estimate of the ore delivered; also the rent due, a deduction therefrom, and payment of the balance. No other sensible construction can be given such a contract, and although the parties may not thus have met and settled monthly, or may have met at some time a&d estimated and agreed as to the amount of ore delivered, and the sum to be credited to Gingrass therefor, yet he would not thereby be enabled to sue for and recover such amount without any reference to the deductions to be made therefrom on account of rent. The case of Roberts v. Wilkinson, 34 Mich., 129, and cases there cited, apply here.
The judgment must be reversed with costs, and a new trial ordered.
