Minnaugh v. Partlin

• Decision Date: 27 October 1887
• Citation: 67 Mich. 391,34 N.W. 717
• Court: Michigan Supreme Court
• Parties: MINNAUGH v. PARTLIN.

34 N.W. 717

67 Mich. 391

MINNAUGH v. PARTLIN.

Supreme Court of Michigan

October 27, 1887

Error to circuit court, Wayne county; WALTER HENDERSON, Judge.

James O'Brien, (John W.A.S. Cullen, of counsel,) for plaintiff appellant.

Sylvester Larned, for appellee.

SHERWOOD J.

Peter Partlin contracted with the plaintiff to cut, cure, and put into stack a certain quantity of hay at the agreed price of $15. The defendant refused to pay the plaintiff for his work after he had finished his job, alleging as a reason that the work was so negligently done that the hay was nearly worthless. The defendant was a farmer residing in the township of Greenfield, in the county of Wayne, and the plaintiff lived in Detroit. Failing to receive his pay he sued the defendant therefor before a justice of the peace in the city. The suit was commenced on the sixteenth of August. On the return-day, which was the twenty-fourth of August, the plaintiff declared for work and labor done. The plea was the general issue, and, after a trial on the same day, the justice rendered judgment for the plaintiff for $15 damages, and $4.43 costs. The defendant appealed to the Wayne circuit on the thirty-first day of August, 1887.

On the twenty-fifth day of August, Partlin sued the plaintiff in an action on the case for damages, arising from imperfect work in caring for and saving the hay, before another justice in the city of Detroit. The plea in this case was the general issue. The cause was tried, and judgment rendered therein for the plaintiff on the twenty-seventh day of September, 1886 for $20 damages, which judgment was paid by the defendant on the fourth day of October thereafter. The said Partlin, believing said last-named judgment to be a bar to the suit on appeal against him, did, on the twenty-seventh day of November, 1886, file a plea in the said appealed cause puis darrein continuance, setting up said judgment as a bar to the plaintiff's suit in this case. The issue thus made up in the case came on for trial before Judge JENNISON and a jury, and at the close of the testimony showing the foregoing facts the circuit judge held the judgment pleaded to be a bar, and directed a verdict for the defendant. The plaintiff brings error.

We think the ruling was erroneous. It is true the defendant might have recouped the damages he recovered in his suit against Minnaugh, but he was not obliged to do so, or lose his claim. In case a party neglects to set off a claim when he has an opportunity to do so, he does not thereby preclude himself from recovering his demand, but he will not be allowed any costs in a suit to enforce such claim. A cross-action has always been allowed,...