Ferguson v. Milliken

• Decision Date: 13 January 1880
• Citation: 42 Mich. 441,4 N.W. 185
• Court: Michigan Supreme Court
• Parties: PETER FERGUSON v. ROBERT MILLIKEN.

4 N.W. 185

42 Mich. 441

PETER FERGUSON v. ROBERT MILLIKEN.

Supreme Court of Michigan

January 13, 1880

Plaintiff as assignee of the claim sued upon, not having shown himself a purchaser for value, held that matters of defence and set-off proper, as against his assignor, could be urged against plaintiff. Notice of set-off attached to plea of general issue, held to authorize the admission of a joint and several demand.

Error to St. Clair.

C. &amp W.N. Draper, for plaintiff in error.

W.W. &amp M.N. Stickney, for defendant in error.

COOLEY, J.

Robert Milliken, as assignee of James Milliken, brought suit upon the following writing:

"March 1, 1873. Having settled all accounts, demands and claims of every name and nature to date with James Milliken, it being understood that he receive, in the final settlement with John Booth & Sons, of the balance over paying up, according to contract, $300, from the time of the sale of farm, being $3,800, first claims deducted, and the balance of said $300 to go to James Milliken, each having a copy

"[Signed,] PETER FERGUSON,

"JAMES MILLIKEN."

The defendant, for some reason not explained, filed two pleas of the general issue. To one he attached a notice of set-off in terms as broad as the common money counts in assumpsit, and to the other a notice of recoupment of matters connected with the transaction in which the writing was given.

On the trial the plaintiff gave evidence of the assignment of the contract or writing declared upon to him, and also that at the time James Millikin was indebted to him in a sum larger than the $300 which he claimed was owing on this paper. He did not, however, show that he paid anything for the assignment, nor that any sum was agreed to be or was applied on the indebtedness of James Milliken because of it.

In defence Ferguson, who seems to have conceded that the paper made out a prima facie case against him of an indebtedness of $300, offered to prove that all demands between him and James Millikin connected with the transaction referred to in the writing were not settled, and that he had various claims against James Millikin growing out of it, which he claimed should be allowed to him. The circuit judge held that these demands could not be used in defence to a suit by an assignee on the contract, because the recital therein of the settlement of all demands would operate in favor of the purchase of the contract as an estoppel....