51 Mich. 132 | Mich. | 1883
Lee sued Burrell for failure to perform a-contract whereby he agreed to pay certain joint debts, and to have a mortgage discharged. On the trial these enumerated debts were shown to have passed into judgment, and the mortgage to have passed into decree. There was also evidence of sales of property in each of the cases.
Objection was made to some general questions concerning-the extent of the joint obligations, but inasmuch as the-recovery was confined to the three debts which had passed into judgment or decree, and as to these it is not claimed the proof was deficient, those questions are of no consequence.
The only tangible question supposed to be presented is-whether there was not evidence that defendant had in fact aided in paying the claims out of his own property to such
It is not clear that had such a claim been set up he could have availed himself of it under the pleading. As we read the declaration it counts for a breach and for damages on the failure to pay the debts and have the mortgage released. For these, under the decisions above mentioned, the plaintiff was entitled to recover the full amount of each debt, and that is precisely what the court allowed him to recover. 'There is certainly reason to consider any special defenses not amounting to release or payment as requiring notice. The allegations in the declaration concerning the sale of particular property of Lee do not constitute the entire claim, but are only explanatory of the proceedings to judgment and execution which followed defendant’s failure to pay the claims. The claim of damage covers the entire breach, and is in the sum of five thousand dollars. The allegations of sacrifice of Lee’s property might, perhaps, serve by way of aggravation, if such a claim could be maintained, upon which we need not now spend any time, because no recovery was asked or allowed on any such basis. But there is nothing whatever to authorize any reduction of the face of the judgments and decree, or to show that Burrell or his property paid anything that entitles him to such reduction.
The judgment was correct, and must be affirmed'with costs.