Seventh-Day Adventist Pub. Ass'n v. Fisher
| Decision Date | 07 April 1893 |
| Parties | SEVENTH DAY ADVENTIST PUB. ASS'N v. FISHER. |
| Court | Michigan Supreme Court |
Error to circuit court, Calhoun county; Frank A. Hooker, Judge.
Action by the Seventh Day Adventist Publishing Association against David Fisher, administrator of the estate of Eliphet M Kimball, deceased. Plaintiff had judgment, and defendant brings error. Affirmed.
Crane & Breck, for appellant, insist that plaintiff has had its day in court, and that it comes within the principle laid down in Jacobson v. Miller, 41 Mich. 94, 1 N.W. 1013; Barker v. Cleveland, 19 Mich. 230, Hazen v Reed, 30 Mich. 331.
Hulbert & Mechem, for appellee.
The plaintiff presented a claim against the estate of Eliphet M Kimball, deceased, for cash advanced to him during his lifetime, for goods purchased, and for subscriptions to periodicals published by plaintiff, amounting in the aggregate to $453.30. On appeal to the circuit court judgment was rendered for this sum with interest, and the administrator appeals. There was a written finding of facts, and it is conceded that the findings support the judgment, unless it be held that plaintiff was precluded from recovering by the judgment in the former suit hereinafter referred to. It is also insisted that there was error in receiving in evidence the plaintiff's books of account.
1. It is claimed that the subject-matter of the suit was, or might have been, litigated in another suit between the same parties. It appears that the representatives of Kimball brought an action against the present plaintiff to recover a sum of money obtained by the association from the deceased in his lifetime, to be devoted to charitable uses, but which it was claimed was obtained by undue influence. The bill of particulars filed by the administrator in that case contained a charge for $2,200, "less some small payments made to Eliphet M. Kimball in his lifetime by defendant." The court in that case found payments to the amount of $414, and gave credit for the same. No set-off was pleaded in that case, but the association denied any liability, and rested upon that defense. In the present case the circuit judge finds as follows: "None of the items involved in this claim were before the court by evidence, nor were the same, or either of them, considered, allowed, applied, or adjudicated on said trial." It is distinctly returned that the present bill of exceptions does not contain all the evidence, and also that there was evidence showing that none of the items claimed for in this action were included in the former case referred to. This finding is therefore conclusive, unless it be held as a matter of law that through its failure to plead set-off the plaintiff is concluded from afterwards bringing suit upon its counterclaim. Such is not the law. Herm. Estop. � 266; McEwen v. Bigelow, 40 Mich. 215; Huntoon v. Russell, 41 Mich. 316, 2 N.W. 38; Morehouse v. Baker, 48 Mich. 335, 12 N.W. 170; Mitchell v. Wells, 54 Mich. 127, 19 N.W. 777. The authorities cited by defendant's counsel are cases in which the counterclaim was set up by the defendant, and was within the issue tried.
2. The plaintiff's books of account were received in evidence against the...
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