Cilley v. Van Patten
| Decision Date | 05 January 1888 |
| Court | Michigan Supreme Court |
| Parties | CILLEY et al. v. VAN PATTEN. |
Error to circuit court, Ottawa county; DAN. J. ARNOLD, Judge.
The plaintiffs, James Cilley and Lafayette Hatch, brought assumpsit against the defendant, Barney Van Patten, in justice's court, and recovered a judgment. The cause was taken to the circuit court, on appeal by defendant, where there was a trial, and judgment for plaintiff, and an appeal taken from the circuit court to the supreme court, by defendant, and the case sent back to the circuit court for new trial. 25 N.W. 326. On the second trial in the circuit court, plaintiffs recovered judgment, against defendant, from which defendant Van Patten brings error.
C.C Howell, for appellant.
George E. Farr, for appellee.
The plaintiffs brought this suit in assumpsit against the defendant in justice's court and recovered a judgment of $300. On appeal to the circuit, the plaintiffs recovered a like judgment. The proceedings and judgment in the circuit came to this court on error, where the judgment was reversed, at the October term, 1885, (25 N.W. 326,) on the grounds that certain proofs made of plaintiffs' claim were not admissible under his declaration, and that the defendant was allowed to make proofs of certain items which he should not have been permitted to do. The plaintiffs were allowed a new trial, which has been had, and the proceedings upon that trial are now before us for review.
It appears from the record that the plaintiffs amended their declaration before the last trial, in order to avoid the objections upon the former trial, and which proved fatal, and they then succeeded, recovering the same amount as before. The items claimed for under the declaration now before us are: (1) A note, given by the defendant, for $33, dated November 15, 1879, and owned jointly by the plaintiffs. (2) A personal account of plaintiff Cilley against defendant, owned by the plaintiffs. (3) A personal account of Hatch against the defendant, owned by the plaintiffs. (4) A claim for a quantity of slabs owned by plaintiffs and sold by defendant. The plea was the general issue with notice of setoff.
The trial was before Judge ALNOLD, and a jury, in the Ottawa circuit. The defense claimed against the note was, that it was given to the payee (one Nelson) for work and labor to be performed by him, and which he never did; and, further, that defendant is entitled to set off against the note such claim as accrued to him against Nelson while the latter owned it. To the claim made by plaintiffs for the Cilley account, the defendant urges, as a defense, that the account was originally due to the plaintiff Cilley, and that a portion of the services, charged for by him against the defendant, were never performed, and, as to certain other services, defendant never employed Cilley for that purpose and that he has paid Mr. Cilley more than $33.79, and claims an offset of about $40, against the plaintiffs' claim. In regard to the item for slabs, the plaintiffs claimed that plaintiff Hatch and one Thirkettle, owned a quantity of slabs at Port Sheldon, in the county of Ottawa, to the amount of about 200 cords; that plaintiff Cilley sold the same, or rather Thirkettle's interest, on an execution against Thirkettle, and that the former became the purchaser at the sale, and the plaintiffs became the owners thereof afterwards, without any authority, the defendant sold a large quantity of these slabs, and received the money therefor, at seventy-five cents and a dollar per cord. The defense claimed against this item is that Thirkettle and Hatch had no such amount of slabs; that he never sold any slabs belonging to the plaintiffs; that he never got any money for the slabs plaint...
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