Smith v. Warner

• Decision Date: 10 April 1866
• Citation: 14 Mich. 152
• Court: Michigan Supreme Court
• Parties: Simeon Smith v. William Warner and another

14 Mich. 152

Simeon Smith v. William Warner and another

Supreme Court of Michigan

April 10, 1866

Heard January 4, 1866 [Syllabus Material]

Error to Wayne circuit.

This was an action on contract brought by plaintiff against defendants, to recover damages for non-delivery of certain personal property.

The declaration contained a special count as to the breach, and also the common counts. Defendants pleaded the general issue with notice of set-off and recoupment.

The parties consented to a reference of the cause to Thomas S Blackmar. After the filing of his report exceptions were taken by plaintiff, whereupon defendants' attorney applied to the court for a re-reference to the same referee with respect to a certain finding, and which was granted. On the filing of the second report plaintiff renewed his exceptions. The court confirmed the report and rendered judgment in favor of defendants. The facts are stated in the opinion.

Judgment set aside, with costs, and a new trial ordered.

Levi Bishop, for plaintiff:

1. The declaration contained a special count upon a special agreement. The right of set-off was thereby defeated: 1 Esp. 378; 1 Cowp. 56; 3 Leigh 78-83; 6 Cow. 613.

2. The damages, being unliquidated, cannot be set off: 13 Wend. 139; 2 Dana 269; 6 Cow. 613; 16 Mo. 494; 39 Me. 445; 5 T. B. Monroe, 83; 3 Blackf. 31; 1 Esp. 378; 18 Mo. 158; 4 Denio 292; 2 Johns. 150; 17 Mass. 178; 6 Geo. 509, 512. The same rule holds in equity as at law on this point: 1 Smith, 337; 4 Edwards 308; 3 Comst. 475; 10 Mich., Title Set-off; 2 Cow. 139.

3. As a corresponding proposition, if the claim of the plaintiff be of such a nature that it could not be allowed as a set-off, then no set-off can be allowed in an action upon such claim: 5 Day 113; 17 Mass. 178; 16 Mo. 494; 2 Johns. 150, 155; 6 Cow. 613; 13 Wend. 339; 1 Sanf. 254, 626.

4. If the amount of damages can be ascertained by computation, it is liquidated; if it depends on proofs, it is unliquidated; 3 Pars. on Con., 156-163; Powell on Ev., 233-4; 2 Dana 269; 2 Johns. 150, 2, 5.

5. The court erred in ordering a re-reference in the case, with directions to the referee to review a part of his report: Sess. L. 1861, p. 160-9.

The circuit court did not in any way, in whole or in part, set aside the report of the referee before making the re-reference. This was clearly necessary. The finding of facts by a referee is like the verdict of a jury. A re-reference is the granting of a new trial, and as a new trial cannot be granted without setting aside the verdict, so a re-reference cannot be made till the report, in whole or in part, is set aside: Graham's Pr., 576, 7; Green's Pr., §§ 1076, 1078; 12 Johns. 218.

This is a special statutory proceeding. Neither the court nor referee can do anything which the statute does not expressly authorize; and neither can do anything in any other manner than that specified in the statute.

Before making a re-reference, the court must act on the report and set it aside, in whole or in part. If the report is confirmed as a whole, that ends the case; if set aside in whole, then a re-reference may be made. If a part is to be referred back, the court must first set aside that part and confirm the balance. The parties, as we submit, are entitled to definite action on the whole report, and on each and every part of it, before any re-reference shall be made.

There can under the statute be no re-reference of a part of the case. The law says that the court in its discretion may refer the case back. These words "the case," mean the whole case, as the words "judicial power," mean the whole judicial power: 5 Mich. 417.

6. The first reference in the case was upon consent of parties. The re-reference was resisted and objected to by the plaintiff. An exception was taken, but was overruled with others. If, therefore, there was anything wrong about it, we are now entitled to have that wrong corrected.

D. C. Holbrook, and G. V. N. Lothrop, for defendants:

1. The special count was useless, and wholly unnecessary, as the plaintiff's whole case could have been litigated under, and was within the common counts.

2. When a plaintiff is entitled to recover on the common counts, he cannot prevent a set-off by declaring specially for the same cause of action: 4 Campb. 385; 2 Esp. 626; Chitty on Con., 8th Am. ed., 738; 15 Wend. 57-8; Babington on Set-off, 10; 2 Pars. Con., 245, 249.

3. The plaintiff's demand, as appears by the referee's report, was liquidated and so proved; if he had any other, it was not proved.

The demands sought to be set off were all within the statute allowing set-off: Comp. L., § 4180.

(No authorities were cited as to the question of reference.)

Campbell, J. Cooley and Christiancy, JJ. concurred. Martin, Ch. J. did not sit in this case.

OPINION

Campbell J.:

Suit was brought upon a contract, whereby Warner and Catlin agreed to sell and deliver to Simeon Smith, the plaintiff, a considerable amount of goods, household and other furniture, stock and implements, which were all to be delivered at a future day named in the contract. Payment was to be made by Smith in sawing lumber (which was to be taken by him at places specified, and sawed and piled upon the docks named), and in lath and shingles. The declaration set forth as a breach the failure of the defendants to furnish certain specified articles included in the sale. It also contained the common counts.

The defendants pleaded the general issue, and gave notice of set-off. They also put in a further notice concerning which no question arises.

The case was referred to Thomas S. Blackmar as referee, before whom it was tried. Defendants were allowed, under objection, to introduce, by way of set-off, a certain paper of Simeon Smith, purchased before suit was commenced, and after its maturity, and certain other claims purchased on the day suit was commenced, but before service of declaration or notice of suit. All of these purchases were made before defendants had notice of the assignment of Smith's claim against them to Tennis and Dangler. It was shown that Smith had for years been notoriously insolvent, and that defendants knew it, and purchased the claims expressly with a view of using them by way of set-off, in case they should be sued. The set-off was allowed, and exception taken on that ground.

After the referee had made his report, the circuit court, upon the application of defendants, sent it back to the referee, directing him to review the evidence concerning an allowance by him of certain lumber at a certain price named, and if found erroneous, to correct the report. There was nothing in the original report showing any finding concerning the amount of lumber so referred to, nor any statement by the referee that he had included it in his estimates, which were all general, and arrived at gross results independent of specified items. The referee after this direction made an additional report, stating that he had reviewed the evidence on the point mentioned, and heard argument thereon, and now found that he had allowed $ 6.50 per thousand upon a part of the amount of lumber mentioned in the order, when it should have been allowed at $ 2.50 per thousand; and he reported thereupon that a corresponding deduction should be made.

This second reference and the proceedings under it were also objected to, and exceptions taken.

The first question of importance arises concerning the allowance of set-offs.

Our statutes, in allowing set-offs to be introduced, permit this only where the claim sued on would itself be a proper subject of set-off. It is claimed that the cause of action in this case could not have been set off. As it is not for any of the causes specifically described in the statute, the only inquiry is whether it conforms to the remaining provision, that "the amount must be liquidated, or be capable of being ascertained by calculation."

The grievance specifically set forth in the declaration was the failure to deliver certain articles which defendants had agreed to sell and deliver. The damages for such a breach of contract can only be ascertained by satisfying a jury of the amount of loss actually sustained. This must depend on the testimony of witnesses concerning their value, and upon the conclusion to which the jury may arrive as to what measure, among those which may be possibly sworn to, is the most reliable. A claim can never be said to be liquidated until some specific amount, or some specific data from which such amount can be calculated by an ordinary mathematical process, shall have been arrived at in such a way as to measure the rights of the parties. This can never be the case before verdict, where the data for calculation depend on values to be established by witnesses: Smith v. Eddy, 1 R.I. 476; 1 Ch. Pl., 571, 572; Bolinger v. Gordon, 11 Humph. 61; Diehl v. Gen. Mut. Ins. Co., 1 Sandf. Sup. C., 257; Foster v. Bell, 2 Miles 399; Christian v. Miller, 30 Va. 78, 3 Leigh 78; ...