McEwen v. Bigelow
| Decision Date | 20 January 1879 |
| Citation | 40 Mich. 215 |
| Court | Michigan Supreme Court |
| Parties | James McEwen v. William C. Bigelow |
Submitted January 10, 1879
Error to Wayne. Submitted Jan. 10. Decided Jan. 20.
Judgment of the circuit court reversed, and that of the justice affirmed, with costs of both courts.
J. W Donovan for plaintiff in error.
Geo. W Radford for defendant in error.
The parties to this suit appear to have had a controversy over a plumber's bill, which has resulted in two suits, one of which is now before us.
The following facts may be taken as conceded by the parties. McEwen had made a contract for doing certain work at the price of $ 144. He had also sold Bigelow gas fixtures at the price of sixty dollars. It is not disputed that McEwen performed his contract, but he claimed to have done considerable extra work and furnished extra materials for which he demanded payment. Bigelow disputed this bill for extras. He had, however, paid McEwen $ 253.32, which was $ 49.32 more than he admitted to be owing him. Apparently to recover this balance he brought suit against McEwen before Justice Comstock. Within an hour after the commencement of this suit, McEwen sued Bigelow for the amount of his bill before Justice Toll.
The Comstock suit proceeded to judgment first. Bigelow declared on the common counts only, and it does not appear that his special contract with McEwen was in any way in issue in that suit. He showed that he had paid McEwen $ 253.32 and then gave him credit for $ 144 by plumbing and gas fitting, per agreement, $ 60 for gas fixtures, and claimed and took judgment for a balance of $ 49.32.
McEwen claimed no set-off in the Comstock suit, but he proceeded to a trial of the suit before Justice Toll. In that suit he proved his bill, including the extras, and allowed Bigelow a credit for his payments. Bigelow claimed that the suit and judgment before Justice Comstock was a bar to the suit before Justice Toll, but his claim was not allowed, and McEwen had judgment for the full amount of his claim, less the payments made by Bigelow, deducting from the latter the sum of $ 49.32 which Bigelow had recovered in the suit before Justice Comstock. The circuit court reversed this judgment.
I. There was no error in holding that the first suit and the judgment rendered by Justice Comstock was not a bar to the suit brought before Justice Toll. The Comstock suit did not necessarily involve the same subject matter at all. The suit was for money paid; and the only way McEwen's bill was brought into it was by the action of Bigelow in giving credit for a portion of it. Now McEwen had a right to use his bill by way of defense...
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