Benton Harbor-St. Joseph Gas & Fuel Co. v. Middle West Coal Co.

• Decision Date: 16 February 1921
• Docket Number: 3453.
• Citation: 271 F. 216
• Parties: BENTON HARBOR-ST. JOSEPH GAS & FUEL CO. v. MIDDLE WEST COAL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

271 F. 216

BENTON HARBOR-ST. JOSEPH GAS & FUEL CO. v. MIDDLE WEST COAL CO.

No. 3453.

United States Court of Appeals, Sixth Circuit.

February 16, 1921

Jas. T McAllister, of Grand Rapids, Mich. (Hatch, McAllister &amp Raymond, of Grand Rapids, Mich., and Jeffery, Campbell &amp Clark, of Chicago, Ill., on the brief), for plaintiff in error.

Julius H. Amberg, of Grand Rapids, Mich., and Murray Seasongood, of Cincinnati, Ohio (Willard F. Keeney and Julius H. Amberg both of Grand Rapids, Mich., and Murray Seasongood, of Cincinnati, Ohio, on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

On the 22d day of August, 1919, the Middle West Coal Company brought an action in the District Court of the United States for the Western District of Michigan, Southern Division, against the Benton Harbor-St. Joseph Gas & Fuel Company, to recover balance due for coal sold and delivered by the plaintiff to defendant under the terms and conditions of a contract in writing dated May 24, 1918.

The defendant admits its indebtedness on this contract in the sum claimed by plaintiff, but asserts a counterclaim of $5,666.82, which it avers it paid to plaintiff upon another contract for the purchase of coal dated July 1, 1917, in excess of the maximum price therefor, authorized by the United States Government Fuel Administration. The answer also contains a second, third, and fourth defense, all of which are waived.

The plaintiff in writing demanded a bill of particulars, which was not furnished by defendant. After the jury had been impaneled and sworn and the cause stated, counsel for plaintiff objected to the introduction of any evidence under the plea and notice of set-off and recoupment: First, because no bill of particulars of the demand upon which the defendants seek to recover by way of set-off or counterclaim had been filed; and, second, because upon the pleadings themselves there is no right in the defendants to recover any such demand.

The court refused to sustain this objection, upon the theory that no bill of particulars had been filed, but, without passing upon its merits, indicated that in its opinion the plaintiff had waived this by proceeding to trial without objection. It did, however, sustain the objection upon the ground that this first defense, set-off, and counterclaim fails to state the necessary elements of recovery. This objection was sustained without prejudice to any further action which the defendant might take thereon, and opportunity was given to the defendant to withdraw the same.

For the purpose of properly presenting the question in the record, the defendant was permitted to exhibit to the court certain letters exchanged between the plaintiff and defendant at the time the contract described in the counterclaim was made and executed. It is claimed on the part of the defendant that these letters must be read as part of that written contract. If it be conceded that the letter written by the plaintiff in error and forwarded to defendant in error, with the contract, and the reply of the Middle West Coal Company thereto must be read into the original contract of July 1, 1917. Nevertheless the plaintiff in error must fail in this action.

This first defense in its plea and notice is not a mere set-off growing out of the transaction described in the declaration. On the contrary, it is a counterclaim arising out of an entirely different contract, relating to an entirely different transaction, although both contracts relate to the sale and purchase of coal. That being true, it was incumbent upon the defendant to allege the necessary elements of recovery. On the contrary, this defense and counterclaim merely recites the fact that a contract entirely apart from the one sued upon was made; that in this contract it agreed to pay for coal to be delivered under...