Graham v. Myers

• Decision Date: 20 October 1887
• Citation: 34 N.W. 710,67 Mich. 277
• Court: Michigan Supreme Court
• Parties: GRAHAM v. MYERS.

34 N.W. 710

67 Mich. 277

GRAHAM v. MYERS.

Supreme Court of Michigan

October 20, 1887

SHERWOOD, J.

This action was brought to recover for printing done by plaintiff for the defendant. It was commenced in justice's court. The plaintiff's declaration was on the common counts, but sought mainly to recover for goods manufactured, sold, and delivered, and on an account stated. The defendant pleaded the general issue, with notice of recoupment. The plaintiff recovered a judgment before the justice for $169.62. On the appeal to the circuit, a trial was had by jury, and the plaintiff recovered a judgment for $174.50, and the case is now before us for review on the proceedings had in the circuit.

The plaintiff's bill of particulars contains eight items. The balance claimed on the account, with interest, was $198.50. The account contained but two credit items: one for $25, and the other for $30. There was proof tending to show the work performed, and the value thereof; also tending to show an account stated, although the jury did not, it would seem accept the proofs as conclusive of the account stated. The testimony on the part of the defendant tended to show the printing claimed for was done in a defective manner. The defects in the work claimed by the defendant consisted in the plaintiff's not giving the defendant copies ordered, that words were misspelled, and that other errors were allowed to go into the printed matter ordered by defendant, by reason of which he was damaged, but to what extent or in what amount does not appear in the record. No special contract was testified to under which the work was to be done. It is claimed by the plaintiff, in answer to the alleged imperfection of the work, that, if such errors and mistakes did occur in the work done for the defendant, the fault was not that of the plaintiff, but that they occurred by reason of the negligence of the defendant in correcting the proof furnished, which he was requested to do, and did do, and there was some testimony in the case tending to support this claim.

Twenty-one errors are assigned upon the rulings of the court in taking testimony. The first question objected to is that relating to interest upon the account. If what the plaintiff claimed was true, that there was an account stated, then the question was proper, and the plaintiff had a right to the evidence in the case upon his theory, and to go to the jury with it, and was correctly allowed to do so.

It was not improper for the plaintiff to show to the jury the time charged for, and how the plaintiff made up his items in charging parties for whom he did work; and this was the character of the testimony objected to and admitted in the errors assigned in Nos. 2, 3, 4, 5, 6, 8, 9, and 10 and they need no further discussion.

The plaintiff was permitted to make proof of the custom of his office in correcting proof, against the objection of defendant's counsel. The plaintiff gave testimony tending to show that the defendant knew the custom of the office in regard to the matter queried after. We see nothing objectionable in this, and the testimony was properly admitted, especially as the defendant had no...