Platt v. Brand

• Decision Date: 07 November 1872
• Citation: 26 Mich. 173
• Court: Michigan Supreme Court
• Parties: John P. Platt and another v. Charles R. Brand and others

26 Mich. 173

John P. Platt and another v. Charles R. Brand and others

Supreme Court of Michigan

November 7, 1872

Heard October 30, 1872

Error to Wayne circuit.

Judgment affirmed, with costs.

John J Speed, for plaintiffs in error.

D. B & H. M. Duffield, for defendants in error.

OPINION

Campbell, J.:

Plaintiffs sued defendants on the common counts with a copy of an acceptance appended to the declaration, and defendants set up in defense, by way of recoupment, that the claim sued on was the price of certain glass purchased of plaintiffs, under a contract whereby they were to furnish certain other glass also, to be delivered before the first day of May, 1872; that the glass was to be used in a building in Detroit for which defendants were under contract to furnish it, and that plaintiffs refused to furnish it, and defendants were put to expense and damage by the failure and compelled to supply themselves at a loss.

Upon the trial it appeared that evidence was given to make out this defense, which was believed by the jury, who gave a verdict for defendants. The questions presented arose upon the trial.

The first point suggested here is, that the acceptance was in fact given for two separate bills of glass actually furnished before its date, and that the notice of recoupment only claims that the contract broken included the last of those two bills, and a third bill of the glass not delivered, and that the defense cannot be maintained for this reason, the first sale being separate.

There was no exception taken to the admission of testimony, and there was testimony tending to prove the case as set up by the defense. The charge of the court only allowed the jury to find for the defendants, in case their purchases made up one single contract. We cannot, therefore, go into any investigation to see whether a mistake of fact was made, when the attention of the court and jury was not called to it, and when there was evidence to maintain the case as charged upon. If this supposed discrepancy had been pointed out when the case was put to the jury, a charge might have been asked, which would have brought up the question whether the discrepancy really existed, or, if existing, would have affected the defense. But we cannot now consider it in any shape. The jury found only one contract was made.

The action was brought and the plea was put in, and issue joined before May, 1872. The testimony showed a refusal of plaintiffs to furnish the glass, made in November, 1871. It is now argued that no cause of action, and therefore no right of recoupment could arise, until the original time of performance expired. As this...