16 Mich. 390 | Mich. | 1868
When this case was presented for our consideration before, the principal question which arose upon the record was, whether the claim of the plaintiff of damages for the non-delivery of a portion of the personal property which, by the contract, the defendants were to transfer to him, was to be considered a claim for unliquidated damages or not. It was not disputed, as we understood it, that an allowance had been made by the referee for such damages; but whether that was so or not, there was nothing in the referee’s report to show that he had not done so, and the inference that he had was fairly deducible. We did not intend, in our decision, to go beyond the case then before us to discuss other questions; and the decision was carefully restricted to the precise points then presented by the record.
The present record presents a different case. It now appears distinctly from the report of the referees, whose con-, elusions of fact we must receive as correct, that although the plaintiff presented for their consideration a claim for unliquidated damages, yet that claim turned out on investigation, to be baseless, and that the only claims which the plaintiff was able to substantiate before them were claims which are subject to set-off under the statute. Upon this report the question arises, whether the joinder by the plaintiff of an unfounded claim for unliquidated damages in the same suit with other claims which are subject to set - off, will preclude the defendants from that legal right which they would have had to reduce the plaintiffs’ just demands by counter claims, had the latter been sued alone?
If this question is decided in the, plaintiff’s favor, it must be upon the mere fact that the claim lo unliquidated damages is asserted by Mm. It cannot depend upon his motives in making the assertion, because in most cases it would be impossible to determine what those motives were.
There is nothing in the statute, however, which makes the right to a set-off depend upon the form of the plaintiff’s declaration, or upon his having asserted other claims than those to which the set-off is made. If the demand of the defendant is one in other respects within the statute, so as to be a proper set-off, the only restriction upon the right is, that the plaintiff’s action shall be “founded upon demands which could themselves be the subject of set-off according to law.” Now, when it appears by the record that a demand was asserted that was baseless, but that others were not only asserted but established by evidence, it seems to us somewhat difficult to say that the plaintiff’s action was based upon the unfounded claim. The contrary is clearly the legal inference; and as it also gives effect to the plain intention and purpose of the statute — which is to make claims of a certain nature offset each other — we think the referees were right in holding the case to be one in which set-offs were allowable.
There may be difficulties in the practical application of this ruling in some cases; but the practical administration of the law of set-off is always open to difficulty, and this fact, therefore, is not sufficient reason for an attempt to put a construction upon the statute different from that which a reasonable interpretation of its terms will warrant. There are many cases where it is admissible for a defendant to put in evidence of a set-off, which after all may require to be rejected by the jury, because their finding upon some disputed fact makes the set-off not allowable, when, had their finding on that fact been otherwise, it would
It is also insisted that the allowance of set-off was erroneous because the principal portion of the plaintiff’s demand was established under the special count in his declaration; while the offer of set-off was expressly confined to the common counts. This objection, however, does not seem to us well founded. The plaintiff declared specially for the non-performance by defendants of an agreement in writing; but while he averred in general terms that the defendants had failed to make good and perform the contract in each and every other particular, the only special breach alleged was in the delivery of the personal property The claim upon that was for unliquidated damages; and as without that special assignment of breach, the declaration would have been subject to special demurrer, the defendants were justified in supposing the plaintiff’s claim, under that count, was confined to that one demand; especially as he joined the common counts, which were sufficient to cover all his other claims. The notice of set - off was evidently confined to the common counts because the 'special count asserted a claim which was not the subject of set-off; and we think all the allowances made to the plaintiff by the referees, must be considered as made under the common counts.
The plaintiff also claims that all the demands allowed to the defendants should have been excluded because purchased by them under such circumstances as would preclude their claiming to be owners thereof in good faith; and to
The judgment of the court below must be affirmed, with costs.