author: Christiancy J.

text:
    Jenette Widner v. Israel Olmstead and others; and Jenette Widner v. David Lane and others.

      Bill to enforce Zien. Injunction. Complainant owned the fee of a lot upon which stood a mill. Her husband entered into a contract in his own name, with defendant Olmstead to sell and convey to him the undivided one-half of said mill with fixtures, tools, &c.; also to lease one-half of the mill yard, upon certain payments to be made. Said parties carried on the business as partners for some time, and then rented it to their sons. Afterwards, complainant and husband agreed with defendant, Lane, to convey to him the other half of the said mill, and rent the mill yard, on condition of certain payments to be made. Soon after, Lane and said Olmstead ran the mill together, placing new machinery therein, and giving a chattel -mortgage to secure the purchase money. Both bills being for the enforcement of a lien for the purchase money, and to prevent the removal of the machinery, it was held, that no ground being laid for an injunction as an independent remedy, such right must depend on the right to enforce the lien.

      Assignment of interest in MU, effect of. Parties. Defendants in each of said cases having answered, and defendant Lane, in pursuance of a settlement, having assigned his interest to complainant and permitted both bills to be taken as confessed, Held, that the assignment having transferred Lane’s right to complainant, the effect was equivalent to a dismissal of the bill as to Lane, and as the suit was for the enforcement of a lien for the purchase money due from Lane, and all other matters being subsidiary, the second suit went down entirely.
    Contract, effect of affirmance of part. Partners7iip. Where, as in this case, complainant seeks to enforce her lien upon said contract, and has undertaken for that purpose to affirm the same, but to repudiate it as to the provision for a partnership, Held, that the agreement being single, it must be 'affirmed or rejected as a whole. If affirmed, it must affirm the transaction witnessed by it, and the partnership being unsettled, and the husband not a party to the bill, her claim to the purchase money could not be litigated in the suit.

      Submitted January 5th.

      Decided April 4th.

    Appeal in Chancery from Wayne Circuit.
    The bills in these cases were filed by complainant to enforce certain liens for purchase money under defendants’ contracts, and which were treated in the nature of equitable mortgages.
    The cases being closely connected in their facts, were considered together.
    The facts are fully stated in the opinion.

      Levi Bishop, for complainant.
    The bill is taken as confessed by the defendant Lane, and the case is heard on pleadings and proofs as to the other defendants. The object of the bill is to foreclose an equitable mortgage on the mill property in question, as against the defendant Olmstead.
    1’. It is established that the mill property in question was the private projrerty of the complainant.
    2. The contract of sale of one-half to Olmstead on February 22d, 1854, is not denied.
    8. The proper construction of the contract is, that no lease was to be given, till all the purchase money should be paid.
    The said Widner agrees to lease, are the words of the contract. The agreement is made upon the express condition that Olmstead should pay the $950.

      4. The contract being on condition to pay the purchase money, embodies within itself a mortgage for the unpaid part of the purchase money. — 4 Kent, 10 ed. 146.
    5. The property belonged to complainant, but the contract was made by her husband, in his own name.
    She wished to file the bill in her own name, and therefore took an absolute assignment of the contract indirectly to herself. This placed both the legal and equitable title to the claim in her. 'In such a case it is not necessary to make the assignor a party to the suit.- — -Story’s Eq. Pl. § 153.
    The case is one to foreclose an equitable mortgage, the real title to which was in the assignee, and the assignment had the effect, as it was desired, to put the formal or nominal title in her.
    If no assignment had been made, Widner might have been joined with the complainant, so far as the unpaid purchase money was concerned, but nothing else.

      K. Kali, for defendants Olmstead and Lane.
    <?. A. Wileox, for defendant Yanderbilt.
    The bill in this case must be treated either as a bill for the specific performance of a contract, or for the enforcement of the balance due on a contract by the sale of the property as of mortgaged premises, and no relief can be claimed, except in accordance with its terms.
    The frame and purport of the bill is to that effect, and recognizes the contract.
    1. It is a personal contract between Widner and Olmstead in their own respective rights and capacities, and not as agent for any other persons.
    2. The object is to form a partnership between Widner and Olmstead in the lumber business, and not simply to sell or buy a piece of real estate. Widner assumes to own the entire property. If Olmstead enters as an equal partner he must either buy or rent an undivided half. Widner, therefore, sells him an undivided half of the mill. He then agrees to lease the undivided half of the ground so long as needed for the mill.
    The final clause assumes that they are partners, viz: “ It is further understood by both parties that they be, on and after this date, equal partners in the said mill, &c.”
    Furthermore, the bill expressly admits this to be so, and states that the “ parties went on for several months with their partnership affairs, as mentioned and provided for in said contract.”
    It is clear, therefore, that the mill was deemed, between the parties, to be partnership property. Being for the purposes of trade, even though in its nature it might be real estate, it would be deemed personal as it respects partnership rights.— Coll. on Part. §§ 135, 136, and note; 1 Walker, (Mich.) 203. This being the true construction of the contract the bill must fail for want of pai’ties.
    3. The mill, by the contract, was partnership property.
    An account must be taken, and the partnership settled. But this cannot be done without making Moses B. Widner a party.
    The fact that Widner has assigned this contract to his wife ' in no way affects Olmstead’s right to have all matters growing out of the contract settled in the same suit.
    The averment in the bill, that the assignment of the contract “ was not intended to cover any rights pertaining to the partnership affairs,” may operate as an estoppel to bar the complainant from claiming a dividend of the assets of the partnership, but it can afford no guide to this Court in determining the meaning of the contract, or of the assignment indorsed upon it.
    4. The bill must fail for want of equity.

      a. The fee is shown never to have passed from complainant, and that no lease was ever given. The relief sought is substantially for a specific performance of the contract. But the contract, as it stands, will not justify the intervention of a court of equity in this manner

      Complainant is not a party to the contract. Her name is not signed'to it. And since she is not bound, she cannot compel Olmstead- to fulfill. — 1 Sug. on Vend. pp. 53 and 54, and note; and see Statute of Frauds.

      b. The contract is personal with Widner in terms, and not with complainant; and it is incompetent to prove by parol that it was intended to be with complainant. — Story Eq. Jur. § 1531; 1 Sug. on Vend. 172; 1 Cox, 15.

      e. The assignment of the contract to complainant does not help the case, because Widner neither owns the fee nor attempts to convey it to his wife.

      d. The contract soug'ht to be enforced was made with a stranger to the title. This cannot be enforced, even though it afterwards be assigned to the true owner. — Sug. on Vend. 241.
    The settlement of complainant with Lane is virtually a dismissal of the bill as to him, and any assignment of his rights, to complainant being subsequent to the commencement of this suit, cannot be brought into this case. — 1 Greenl. Ev. § 178; 3 Id. § 283, and note; 2 Dan. Ch. Pr. 982, and note; 2 J. J. Marshall, 138.
   Christiancy J.

These two cases being closely connected in their facts, will be considered together.

The complainant, who is the wife of Moses B. Widner, was, on the 22d day of February, 1854, the owner in fee of an eighty acre lot, in the township of Huron, in the county of Wayne, upon which there was a steam saw .mill, erected mainly with her money, but the engine and boiler in which seem to have been obtained on the credit of the husband, with certain chattel mortgages thereon, as collateral security. On that day the husband in his own name entered into a certain contract by deed with defendant Olmstead, by which he, “for himself, his heirs, administrators and assigns,” purports to sell and convey to Olmstead, “ his heirs, assigns and administrators, the equal undivided half of his steam saw mill, together with all its fixtures, tools, implements anti appurtenances thereto belonging,” describing its location, and “ further agrees to lease and let the equal one undivided half of the mill-yard, consisting of three acres of ground, to be used by said Olmstead as long as the premises shall be used for a mill, which premises shall always be free to be used in common by either or both parties, so long as either or both parties shall want to occupy the ground with a mill; upon the following conditions, viz: the said Olmstead agrees for himself, his heirs, assigns and administrators, to pay to said Widner, his heirs and assigns, the sum of nine hundred and fifty dollars ($950) as follows; one hundred and fifty dollars at this date; secondly, he is to pay J. & J. Brainard the amount due for the boiler now in said mill, supposed to amount to about four hundred and fifty dollars ($450); thirdly, two hundred dollars ($200) to be paid by the first day of June next, and the residue to be paid on, or before the first day of October next. It is further understood by both parties that they be, on and after this date, equal partners in the said mill, without hindrance or opposition, one from the other; they are to share equal and alike, both as to gain and loss, and to be at equal expense in running said mill.”

Olmstead and complainant’s husband went into business and carried on said mill as partners, under said agreement, for some time, and then rented it to their sons.

On the 10th day of September, 1859, complainant and her husband entered into a contract with the defendant, David Lane, by which upon certain terms and conditions they purport to convey to Lane the other undivided half of said saw mill, machinery, &c.; and agreed to rent him the undivided half of two acres of the ground on which the mill stands, for which Lane agrees to put the mill in order, and to pay one thousand dollars in sawing, as therein specially provided. This agreement,'however, though awkwardly worded, when fairly construed, may perhaps amount merely to a conditional sale, to become absolute only on payment by Lane.

After this conveyance to Lane, he and Olmstead ran the mill together, and finding the old engine (originally in the mill at and before the sale to Olmstead) worthless of unfit for use, sold the same or some parts of it as old iron, for which they realized $42, and purchased a new engine from defendant, Vanderbilt, January 16, 1861, for which they agreed to pay $550 in instalments, (none of which had become due when Vanderbilt’s answers in these cases were filed,) and for which they executed a chattel mortgage in the usual form upon the engine so purchased, and also upon the steam boiler in said mill with all the tools, fixtures and appurtenances therein. It may be loosely inferred from the mortgage and the evidence, though nothing is said upon the point in the pleadings, that the boiler was the same originally in the mill before the sale to Olmstead; but the bill does not place complainant’s lien for purchase money upon any such ground, nor upon any ground different from that upon the engine and tools; nor is there any allegation that it was attached to the freehold, in any other manner than the engine.

The bill in the first entitled case is for the enforcement of complainant’s lien for the purchase money claimed to be due from Olmstead under his contract above set foi’th; and the object of the bill in the second case is for the enforcement of a similar lien for the purchase price due from Lane under the contract with him; treating the lien in each case as an equitable mortgage. Lane is only made a party to the first bill under an allegation that he claims some interest under Olmstead, and is charged in common with Olmstead with having sold the old engine and iron, and replaced them with others, and with the intention of removing the engine, machinery and boiler, and even the mill, from the premises to avoid complainant’s lien, and to the prejudice of her security. Olmstead is made a party in the second bill only as claiming some interest under Lane, and charged in common with Lane with the design of removing the engine, &c. Vanderbilt in both cases is made a party only in respect to his chattel mortgage, and the bills claim that the engine and other mortgaged property had become and were a part of the real estate, and subject to complainant’s prior lien for the purchase money; but no distinction is made between the engine and the other mortgaged property. Both bills pray for the enforcement of her lien for purchase money, as prior to any lien of Vanderbilt, and for a decree of foreclosure and sale as in case of the foreclosure of mortgages ; and each prays for an injunction to restrain said Lane and Olmstead, and all acting under them, from removing said mill and machinery of selling the same. They also pray for an injunction against Vanderbilt to restrain him from removing or detaching from the lot “ the property, tools and fixtures” mortgaged to him. The remedy by injunction, here sought, is merely subsidiary to the main object of the bill — the enforcement of her lien as a security for the purchase money; and no proper ground is laid for an injunction as an independent remedy. Her right to the injunction will therefore depend upon her right to enforce in these suits her lien for the purchase money, and must stand or fall with it.

Olmstead answers both bills, relying upon the conveyance by comjDlainant’s husband and his agreement therein as above set forth, claiming the validity of all its provisions, and insisting that complainant cannot affirm a part of it without affirming the whole; alleges full payment of the purchase money; that nothing is due thereon; specifies the various payments and sums claimed to apply in the nature of offsets, — all of which would properly apply on the purchase money, either as payment or offsets, if the provision for a partnership between him and complainant’s husband be held valid as to her; admits that he went into partnership with the husband under the agreement; denies that he has threatened, or intends to remove the mill or machinery; avers that the matters growing out of said contract, between him and the husband, have not been settled, that upon a just settlement of the same a large sum would be due to him, Olmstead; insists that it appears from the bill that Moses B. Widner, the husband of complainant, is a necessary party, and prays the benefit of a demurrer.

Lane answers both bills, setting up the instrument executed by complainant and husband to him; averring that he has fully performed its conditions, so far as depended upon him, and his readiness at all times to pay in sawing-, but that the logs were not furnished; denying that the engine and machinery were a part of the real estate, or that he threatened or intended to remove the same. His answer need not be further stated, for reasons which will presently appear.

Vanderbilt answers both bills, setting up his mortgage and insisting upon its validity as against any lien in favor of complainant.

In this stage of these eases, a settlement seems to have been made between complainant and defendant, Lane; and the latter assigns his interest in the property in question to the complainant; and thereupon the complainant’s solicitor, upon an affidavit of these facts, and that Lane consents thereto, enters an order taking the bill in each case as confessed as against Lane, but without costs.

By this assignment, we apprehend, Lane ceased to be a party, his whole interest having been transferred to the complainant. She could not be both complainant and defendant, as to that interest, and the effect was equivalent to a dismissal of the bills as to him, and no decree could thereafter be taken against him under either bill; and the whole suit in the case brought for the enforcement of complainant’s claim for the purchase money due from Mm, [the second bill] was terminated as to all the parties. There was no longer any purchase money due from him, and therefore no lien for it to be enforced as against any of the parties. This therefore disposes of that case, and leaves' for our consideration only the questions arising between complainant, and.Olmstead and Vanderbilt under the bill founded upon the claim for purchase money under the contract with Olmstead.

These' questions will be found to depend mainly upon the pleadings. The .bill sets out the agreement between complainant’s husband and Olmstead; avers that, though made by and in the name of the husband only, it was in fact made by him for and on behalf of the complainant, except the stipulation therein for a partnership; that wishing to have said contract in her own name, she, on the sixteenth day of March, 1861, obtained from her husband a full assignment thereof, and of all rights tinder the same, to one G. M. Mills, who on the same day assigned the same and all lights under it to the complainant, “ whereby she became the owner of said contract, and all rights under the same, except as to the partnership." The assignments make no such exception, but she avers they weze not intended to cover and did not cover any lights pertaining to the partnership, in which she avers she had no interest. She avers there is due to her “ by virtue of the lien created by said contract, and also for the said purchase money independent of the contract,” [the latter phrase is not easily comprehended in this connection] “ a balance of two hundred and forty dollars, with interest thereon, besides the item of four hundred and fifty dollars, mentioned in said contract, for the payment of which she files this bill •” claims she has an equitable lien and mortgage for this purchase money, not only in and by the contract, but also by the rules established in courts of equity. She distinctly admits and avers that her husband, and defendant Olmstead, “went on for several months with their .partnership affairs, as mentioned and provided for in said contract,” and this also appears from the evidence. There is no allegation that the partnership had ever been settled, or a balance ascertained. Olmstead, in his answei’, insists they had not, and there is no evidence of such settlement, but the contrary is to be clearly inferred. Olmstead sets up vaiious payments made by him, which would apply on partnership account or as an offset, (if the complainant is not allowed to repudiate that portion of the agreement,) which he insists more than pay the amount of the purchase money, and without passing upon the evidence it is sufficient to say here, that it tends to establish these averments of Olmstead.

It is clear from this statement, that complainant, in attempting to establish her lien for the purchase money claimed to be due from Olmstead, rests that claim upon the written agreement made by her husband with Olmstead, and that it can have no other foundation upon the facts stated; that she claims, and can only claim, through and under that agreement, and has undertaken for that purpose to affirm that agreement as to the sale, the use of the property, and the amounts and terms of payment of the purchase money, but to repudiate it as to the provision for a partnership between her husband and Olmstead in the mill, and in the stocking and running of it. This she cannot be allowed to do. She cannot select out and affirm the provisions which operate in her favor, and reject those which may operate to her prejudice. She must affirm the whole or reject the whole. The agreement is one entire thing, and all its provisions are to be taken together. No court can be authorized to say that Olmstead would have consented to the purchase, or the amount or terms of payment, or any other of its provisions, if that in reference to the partnership had been left out. This may have been his chief inducement.

This is not the ordinary case of a person without previous authority assuming to act as the agent of another, and in his name in the making of a contract, where the person ’ in whose name the contract is made may by subsequent ratification render it to all intents and purposes a contract between himself and the other party, and hold the latter directly liable upon it. The contract in this instance is by deed. The complainant is not named in it. The husband does not assume or purport to act in her behalf, or that of any other person. He purports to deal with the property as his own, describes the mill as his, executes the instrument and makes all the stipulations in his own name. If she affirms this instrument she affirms the transaction witnessed by it; and it would seem, upon principle, that she must, so far as any equity of Olmstead may have accrued under it, or any act done by him on the faith of it, affirm it as it was, — as the contract of the husband. (Saunderson v. Griffiths, 5 B. & C. 909, 915 ; S. C. 8 D. & R. 643; Evans v. Wells, 22 Wend. 324; Pinckney v. Hagadorn, I Duer, 89; Andrews v. Estes, 2 Fairf. 267; Lucas v. De La Cour, 1 M. & Sel. 249; Hamble v. Hunter, 12 Q. B. 310; New Eng. Ins. Co. v. De Wolf, 8 Pick. 56.) Such affirmance must, we think, to the extent above stated at least, be treated as a previous assent on her part that her husband should thus deal with Olmstead, and that the latter might deal with the husband as the owner, and that she would be bound by the husband’s acts.

But the broad question is not presented in this case, whether by an affirmance of this instrument, she could make it a contract in any sense between herself and Olmstead, or claim any rights under it as against him, without an assignment. (As assignee she could stand in the rights of her husband only.) It is sufficient for the present case, that her affirmance of the instrument would, in our opinion, operate as an affirmance of the partnership, and of the rights of Olmstead as a partner under the agreement, and her rights would depend upon the prior settlement of the partnership accounts; and for this purpose her husband is a necessary party.

It might possibly admit of a question whether complainant’s bill in the present case, expressly affirming the contract in other respects, but repudiating it as to the partnership, could for all purposes be treated as an affirmance; though, as she claims a benefit under it, I am inclined to the opinion that it might; and her bill in the other case, where Lane is the principal defendant, contains a reference to the rights of Olmstead in the property, which looks much like an unqualified affirmance. And her own testimony as well as that of her husband and her daughter, — all of whom testify that she declared she would carry out the agreements of her husband,— have some bearing in the same direction. But the point is wholly immaterial here, and we give no definite opinion upon it; since she must be considered as having affirmed the whole, or repudiated the whole. If she repudiates the whole, then there has been no sale to Olmstead; he owes nothing for purchase money; her remedy at law is complete, and her bill must be dismissed. If she affirms the whole, she affirms the partnership; and this being unsettled, and her husband not a party to the bill, her claim to the purchase money from Olm stead cannot be litigated in this suit, and the bill must be dismissed as to all the parties.

The decree of the Court below dismissing the respective bills as to all the parties must therefore be affirmed, with costs, but without prejudice.

Cooley and Campbell JJ. concurred.

Martin Oh. J. did not sit in this case.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Joseph E. Beebe v. Absalom Young and Another.

      Fraud. Representations. Principal and Agent. In a transaction with B., Y. in good faitli represented to him that a certain mortgage was properly recorded, and a primary security upon certain lands in Pennsylvania, but which proved untrue. Y. also referred B. to his agent in Pennsylvania, who assured him to the same effect. B. relied and acted upon the information received from both. Held, that Y. was bound by the representations made by himself, as well as by those of his agent.

      Submitted January 5th.

      Decided April 4th.

    Appeal in Chancery from Jackson Circuit.
    The bill was filed to set aside a deed executed by the complainant to the defendant, Sarah Young, conveying certain lands, situated in the county of Jackson, on the ground of fraud.

      The Court below made a decree in favor of the complainant.
    The facts are stated in the opinion.

      G. T. Gridley, for complainant.
    ' 1. When a party misrepresents a material fact, knowing it to be false, or makes the assertion without knowing it to be true or false, he is responsible. — 1 Story's Eq. Jur. § 193, note 1; 9 Ves. 21; Freem. R. 57; 2 Bro. Ch. 389.
    2. And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party. — 1 Story's Eq. Jur. § 193, note 2.
    3. The general rule is that an act done, or contract made under a mistake, or ignorance of a material fact, is voidable in equity. — 1 Story's Eq. Jur. § 140; 1 Vez. 126; 1 Ves. 210.
    4. The defendants are responsible for the statements of Maxwell. He was their attorney; he then held the securities for the defendants. The complainant is referred to him, and he gives an untrue statement. >
    5. The defendant cannot claim that he was simply stating information of the facts. It was not belief that he expressed. His statements were jtositive assertions of facts, and to secure belief and confidence in them, gave his information.

      Johnson <& Iligby, for defendants.
    1. If a man states a falsehood, although he believes, it to be true, he is in equity liable, provided he makes that statement upon his own responsibility, but not when these statements are professedly made upon supposed truthful representations of others. — 5 Johns. Ch. 79; 7 Id. 194; 1 Smith's L. cases, 238; 2 Smith's L. cases, 157 and note; 6 Ves. 174; 3 T. R. 51; 2 Paige, 390; 7 Id. 124; 1 Barb. Ch. 125; 4 Dana, 369; 100 E. C. L. 844; 1 Pars. on Con. 56, and note e, and cases therein cited; 10 Meeson and Welsby, 1; 13 Peters U. S. 26.

      2. Where a fact is equally unknown to two parties, or where each has equal and adequate means of information, or where the fact is doubted from its own nature, in every such case, if the parties have acted with entire good faith, a court of equity will not interpose. — 1 Story's Eq. Jur. §§ 149, 150, 151.
   Campbell J.

Complainant in-June, 1857, sold to defendant Sarah Yoqng, wife of Absalom Young, certain lands in Jackson county, and agreed to and did furnish also a certain.amount in building materials. In payment he received a mortgage on lands in Pennsylvania, payable in several instalments, made by one Huffert to Absalom Young to secure a part of the purchase money of the mortgaged premises. This mortgage was dated in April, 1854, but was not recorded until September, 1855 ; and between these dates several judgments were recorded against Huffert, which cut off this mortgage entirely, he being insolvent, and the judgments absorbing his estate. Complainant files his bill, setting forth that he was induced to make the bargain by assurances that the mortgage was duly recorded and a valid security.

No actual fraud is claimed against Young, as the Pennsylvania papers were in the hands of his attorney in that State, and all of his own knowledge was obtained through his information. But it is claimed that Beebe acted upon assurances of the proper condition of the security.

We think the evidence makes out a complete case for complainant. There is distinct evidence that Young represented the mortgage to have been properly recorded, and to be a primary security against the lands covered by it. The assurances of his agent in Pennsylvania were strong and positive that the debt was amply secured. It is quite clear that Beebe was not disposed to act upon any other basis. Young was bound by Maxwell’s stateanents as well as by his own, as he had referred to him for information. The correspondence with Maxwell shows that he was referred to for corroboration of Young upon the principal facts, and for information of a different character concerning the prospects of early collection. Beebe showed diligence in seeking all the information accessible from the source pointed out by Young, and acted upon what he so received. It was the only inducement to the bargain into which he entered. Although Young was not guilty of any moral wrong, yet he did in fact become responsible for the deception of Beebe, and the correctness of his motives cannot discharge him from liability for his injurious acts. Beebe is as much wronged as if the fraud had been intentional, and is entitled to the same relief which such intentional wrong would have justified. Mrs. Young has no equities of her own, and stands on the same footing with her husband. The decree below, rescinding the bargain, was correct, and must be affirmed with costs. The time allowed defendants to make payment will be extended till three months from the date of this decree.

Christiancy and Cooley JJ. concurred.

Martin Ch. J. did not sit in this case.


text:
    Nelson W. Clark v. Thomas McGraw.

      Admissibility of testimony. Two witnesses having testified to conversations witli the defendant, in which, as they stated, he authorized and requested one of them to procure the loan of a sum of money from the plaintiff, and the alleged fact of such loan being in issue in the cause, a third witness was offered to testify to a conversation between himself and the defendant, about the same time, as to whether he could procure such a loan of the plaintiff, in the same contingency mentioned by the other witnesses. Held, that this testimony of the third witness was admissible, as it related to the same transaction testified to by the other witnesses, and tended to show the defendant’s intention to apply to the plaintiff for a loan, in the contingency specified by all three of the witnesses.

      Charge of the Court. The Court cannot charge the jury to find in a particular manner, if there is any evidence tending to prove the contrary. There being testimony to the effect that the plaintiff did loan money to. the defendant through a third party, and that the defendant, after forbidding this party to pay it over in the contemplated transaction, until a certain thing was clone, did authorize said party to act according to the advice of certain counsel; that he did on the advice of said counsel pay over the money; and that, after the transaction, defendant said he supposed said third party had. done the host he could. Held, that the Court could not charge the jury that there was no loan from plaintiff to defendant, and that the evidence was properly left to the jury.

      Agent. Letter of credit. Loan. A. employs B. to procure for him a loan from C.; B. procures the assent of C. to the loan, and through him a letter of credit from C.’s bankers, authorizing him (B.) to draw for the amount, he preferring this to talcing the money. Held, that, as between A. (the borrower) and C. (the lender), B. must be considered the agent of A. in procuring the loan, and the letter of credit as only the mode or machinery for effecting it. An authority granted by O. at the request and for the benefit of A., and to be exercised at his risk, and a check having been drawn by B. and the money obtained, the legal effect of the whole transaction was the same as if C. had delivered his own check or the money directly to A.
    There being evidence tending to prove such facts, it could not be withdrawn from the jury, nor could the jury be instructed that there was no loan.

      JUrror not affecting ‘verdict. If the Court erroneously charge the jury, adversely to the prevailing party, such error not having worked him any injury, or affected the verdict, it is not a ground for interference with the judgment in this Court.

      Heard January 5th.

      Decided April 4th.

    Error to Wayne Circuit.
    The defendant in error sued the plaintiff in error, in the Court below, in assumpsit, to recover the sum of $4,000, which, he claimed to have loaned him. On the trial, the plaintiff below recovered a verdict for $4,159 44, being the sum claimed, with interest. ■
    Upon the trial in the Circuit Court, on behalf of the plaintiff, (defendant in error,) witnesses were called, and testimony given by them as follows:—

      Jesse Saxton, upon direct examination, gave evidence tending to show,
    That early in the month of February, 1865, he, together with one William Cuthbert, entered into a contract with one Rutlidge, for the purchase of a lot of forty acres of land in the county of St. Clair, supposed to be “ oil land,” and, by the terms of said contract, were to pay five thousand dollars therefor to Rutlidge, at Port Huron, on the first day of March then next.
    That prior to said first of March witness and Cuthbert had agreed to sell to defendant, and said defendant had agreed to purchase, an undivided one-half of said land, for the sum of five thousand dollars, which, by said agreement, defendant was to pay to Saxton and Cuthbert, so that they might have the same to meet their payment to Rutlidge.
    That towards evening, on the twenty-eighth day of February, the defendant, who had been for some days prior absent from said city called upon Saxton and Cuthbert, at the store of one George Moe, and informed them that, on account of the absence from the city of one Mansfield, to whom he had sold a portion of his one-half of said land, .and other land, for four thousand dollars, he had not then the money to pay the whole five thousand dollars, and requested Saxton to apply to the plaintiff to borrow for him, (said defendant,) four thousand dollars towards the five thousand dollars; that thereupon he, (Saxton,) went to the office of the plaintiff to apply for such loan.
    The witness was here asked to state the conversation between him and fhe plaintiff on that occasion in regard to such loan.
    The defendant, by Ms counsel, objected to this witness stating a conversation between himself and the plaintiff in the absence of the defendant. The Court overruled the objection, and the defendant’s counsel excepted.
    The witness then stated said conversation as follows, to wit: “ I told the plaintiff that the defendant had been disappointed in getting four thousand dollars of the five thousand dollars, and that he wanted to get it of him for a few days, or until Mansfield returned. Plaintiff demurred somewhat to loaning the money, saying he had it, but did not know at what moment he might want to use it. I told Mm I thought the defendant could get it at any time, if he wanted it; that he was reputed rich. I also told him that defendant said he might not want to use the money, as he thought he might use Mansfield’s bond, or might get Rutlidge to wait till he came to look at his, (defendant’s,) farm. I said something about not wanting to carry this money to Port Huyon, and plaintiff told me I could call on Mr. Morton, cashier of the Farmers’ and Mechanics’ Bank, where plaintiff kept his account, and obtain a letter of credit.”
    Witness then gave further testimony, tending’ to show that he returned to Moe’s store and informed defendant that plaintiff would let him have the money. That defendant then gave witness a check of a third party for one thousand dollars, the residue of said five thousand dollars. That witness and Cuthbert were going to Port Huron the next morning to meet Rutlidge, pay the five thousand dollars, and obtain a deed of the land. And that it was then arranged that the defendant should start with them, go to St. Clair, examine as to the title of said land, and meet witness and Cuthbert at Port Huron. That the next morning, to wit, March 1st, witness called at the Farmers’ and Mechanics’ Bank, and obtained a letter of credit, which letter was in substance that said plaintiff’s check on said Bank for any amount was good, and that witness was authorized to draw such check. That witness met Cuthbert and defendant at the depot, and with them took the cars, and witness and Cuthbert went to Port Huron, and defendant to St. Clair, to examine the title of said land as arranged.
    That witness and Cuthbert met Rutlidge, and had a deed of said land prepared and executed by Rutlidge and wife to witness, Mrs. Cuthbert, wife of said Cuthbert, defendant, and James P. Mansfield, to whom defendant had agreed to sell a one-quarter interest therein', which deed was dated March 1st, i 865, and purported to vest the title of said lands in the grantees therein, as tenants in common, in equal proportions. That on the 2nd day of March defendant came to Port Huron, examined said deed, and made no objection to its form; but did object to the title of the land, as he had found that it had been sold for taxes. But that, after some discussion, defendant told Rutlidge, who was going the next morning to St. Clair, the county seat, to procure a full abstract of the title of said premises, and have said deed recorded, and upon his return to Port Huron with it recorded, the money should be paid over to him.

      That after Rutlidge’s departure the next morning, March 3d, for St. Clair, defendant expressed his intentiou to return to Detroit, remarking that witness could remain and close the matter up with Rutlidge on his return from St. Clair. And he, (defendant,) then directed witness not to pay over the money until the tax titles upon the land were removed. Witness not being familiar with land titles, desired the defendant to remain until Rutlidge’s return. He declined to do so, but went with witness to the office of O. D. Conger, Esq., a lawyer, and consulted with him as to the right under the contract between Rutlidge and Cuthbert to insist upon a clear title. That Rutlidge returned before defendant left, and met defendant and witness in the street, and produced to them the deed recorded, and a full abstract of the title to said land, by which abstract it appeared that the land had been twice sold for taxes. The defendant then informed Rutlidge that the money would not be paid over to him until such tax titles were cleared off, and some,sharp words passed between them, when Rutlidge left to consult his attorney, Mr. Farrand, and defendant to take the cars for Detroit. That before leaving, defendant again requested witness not to pay over the money until said tax titles were cleared off; but that, if any difficulty arose, to consult said Conger, and follow his advice. That after defendant had left, witness went to the office of Mr. Farrand, where he met Rutlidge.
    Plaintiff’s counsel then asked the witness what took place at Farrand’s office between Rutlidge and himself.
    Defendant, by his counsel, objected to said question as incompetent; the Court overruled the objection, and defendant excepted.
    The witness then answered: “ Rutlidge then told Farrand that he had put Ms deed on record at defendant’s request, and Farrand said that was an acceptance of the deed. W^ had quite a discussion, and I finally told them I would leave it to Conger, and whatever he said I would do. We then went together to Conger’s office, and submitted the matter to him, and he decided that the deed having been placed upon record at defendant’s request, Rutlidge was entitled to the money without removing the tax titles. We then went to the banking house of Miller &'Co., at Port Huron. I produced the letter of credit, drew a check in plaintiff’s name for four thousand dollars on the Farmers’ and Mechanics’ Bank of Detroit, obtained the money on it, and paid the five thousand dollars.”'
    Plaintiff’s counsel then asked the following question:
    “In pursuance of what arrangement did you draw the check for $4000?”
    Defendant’s counsel objected to the question as incompetent.
    The objection was overruled and defendant excepted.
    The witness then answered: “It was under the arrangements made with the plaintiff when I went to see him for defendant.”
    Said witness gave further testimony tending to show that upon his return to Detroit, on the fourth day of March, he related to defendant at the office of plaintiff, what had transpired between witness and Rutlidge, at Port Huron, after the defendant left for home, and the circumstances under which the money was paid over to Rutlidge, and that defendant remarked in reply that the money ought not to have been paid over until the tax titles were removed, but he supposed the witness had done the best he could. That the witness then offered to assume the purchase himself, and release defendant, to which defendant declined to assent.
    On cross - examination the witness testified, amongst other things, that on the said 28th day of February he was clerk and bookkeeper for plaintiff, and had been for several years, and so continued for some time thereafter, and was in the habit of drawing checks in the name of said plaintiff.
    The plaintiff’s counsel then offered in evidence the deed executed by Rutlidge and wife to Mrs. Cuthbert, witness, defendant, and Mansfield.
    The defendant’s counsel objected. The Court overruled the objection, defendant’s Counsel excepted, and the deed was read in evidence.

      William Guthbert was then called for the plaintiff, and gave evidence tending to show the same facts testified to by Saxton relative to the making- of said agreement between Rutlidge, Cuthbert, and Saxton, for the sale and purchase of said land; the agreement between Cuthbert and defendant for the pnrchase by defendant of an undivided half of said land; the request by defendant to Saxton to apply on his (defendant’s) behalf to the plaintiff to loan him $4000; the going to Port Huron, the execution of said deed by Rutlidge and wife, and its examination and approval as to form by defendant; and that witness left Port Huron for Detroit on the evening of the second of March, leaving the defendant and .Saxton there.
    The Avitness further testified that 'some days prior to the 28th day of February he had a conversation with defendant relative to his getting money of plaintiff.
    And the witness Avas then asked by. plaintiff’s counsel to state said conversation.
    Defendant, by his counsel, objected to the same as incompetent and irrelevant.
    The Court overruled the objection and defendant excepted.
    The Avitness then ansAvered as follows: “ After Ave (Avitness and Saxton) sold to defendant, I proposed to go to Port Huron and settle the matter right off. But defendant could not furnish the money because Mansfield was not here to get it from him. One or two days before the time was up, he (defendant) went to Clarkston, and before he went he asked me if I thought he could ge the money from plaintiff, if Mansfield did not get home in time to go to Port Huron with the money. I told him that I thought he could, and I think he said he would see.”

      Thomas Me Graw, the plaintiff, testified that an application was made to him on the evening of said 28 th day of February, by Saxton, to loan defendant $4000, and that witness cohsented to loan the same, and authorized Saxton to procure a letter of credit, as testified by Saxton.
    The plaintiff also testified to the conversation between Saxton and defendant, in the office of plaintiff, in which Saxton informed defendant about paying over the money to Rutlidge after he, (defendant,) left Port Huron, substantially as said conversation was testified to by Saxton. And also that afterwards the defendant,' when requested to pay said money, denied that he had ever borrowed any money of the plaintiff.

      John Hutlidge gave evidence tending to show the execution of the deed by him, as testified by Saxton; that the defendant objected to the title because the land had been sold for taxes, but directed witness to go to St. Clair, procure a complete abstract of title, have the deed put upon record, and said that upon his (witness’) return to Port Huron he should be paid his money. The witness did accordingly go to' St. Clair, procured the abstract, and had said deed recorded. That on his return to Port Huron, he met Saxton, and had interviews with him at the offices of Farrand and Conger, substantially as stated by Saxton in his testimony, and that after said interviews said $5,000 was paid over to him by Saxton.
    Thereupon the plaintiff rested.

      JJelson W. Glarh, the defendant, being sworn in his own behalf, gave testimony tending to show: — ■
    That he never requested Saxton to apply on his behalf to the plaintiff to loan him $4,000, or any other sum, and that he did not borrow said money of plaintiff. That he was not informed by Saxton, and did not know until after the commencement of this suit of the existence of the letter of credit referred to by Saxton in his testimony. That he requested and instructed Saxton not to pay over the money to Rutlidge until the tax titles were cleared off. That he never requested Rutlidge to put said deed upon record, nor did he promise that the money should be paid over to him, except and until said tax titles should be cleared off That he did not direct Saxton to consult O. D. Conger, and follow his advice as to paying over the money to Rutlidge. And that he did not afterwards ratify the act of Saxton in paying over the same.
    The defendant having rested, the plaintiff called George Moe, who testified, in substance, that on said 28th day of February, he heard the defendant request Saxton to go to the plaintiff’s office and see if he would loan him that money.
    The plaintiff again rested his case, and thereupon the defendant, by his counsel, requested the Court to instruct the jury as follows, to wit:

      First. That unless the jury find, from the evidence, that the defendant authorized said Saxton to borrow the money,for the recovery of which this action is brought, of the plaintiff in his, (the defendant’s,) name, and on his behalf, the plaintiff cannot recover.

      Second. That, under the testimony, the loan, if ever made, was made at Port Huron, and not at Detroit; and that Saxton was the agent of plaintiff in making such loan.

      Third. And if the money was paid over to Rutlidge by Saxton without the assent of defendant, it was not a loan by plaintiff to defendant.
    The Court gave said instructions marked “ First ” and. “ Second,” as requested; but refused to give said instruction marked “Third,” and did instruct the jury as follows, to wit:
    That if, when the money was obtained of plaintiff, Saxton was acting as agent of the defendant for the purpose of obtaining it, and had authority to obtain it, a misappropriation of the money afterwards, without any direction or authority of plaintiff, if there Avas a misappropriation, would not affect the plaintiff’s right to recover.
    And the defendant did then and there except to said refusal to give said instruction marked “Third,” and also to the giving the last above mentioned instruction.
    The following points were made by the plaintiff in error in this Court:

      First. The said Circuit Court wrongfully permitted the witness Saxton to testify to a conversation between himself and said defendant in error, in the absence of said plaintiff in error.

      Second. The said Court wrongfully permitted said witness to answer the following question: Ques. — “ What took place at Farrand’s office between Rutlidge and yourself?”

      Third. The said Court wrongfully permitted the said witness to answer the following question, to wit: Ques. — “ In pursuance of what arrangement did you draw the check for $4,000 ?”

      Fourth. The said Court wrongfully permitted said deed from Rutlidge and wife to Mrs. Cuthbert and others to be received in evidence.

      Fifth. The said Court wrongfully permitted the ^jlSiess Cuthbert to testify to said alleged conversation between himself and said plaintiff in error.

      Sixth. That the said Court wrongfully refused to instruct the jury as follows, to wit: “ If the money was paid over to Rutlidge by Saxton without the assent of defendant, it was not a loan by plaintiff to defendant.”

      Seventh. The said Court wrongfully instructed the jury as follows, to wit: “ That if, when the money was obtained of plaintiff, Saxton was acting as agent of the defendant for the purpose of obtaining it, and had authority to obtain it, a misappropriation of the money afterwards without any direction or authority of plaintiff, if there was a misappropriation, would not affect the plaintiff’s right to recover.”

      Newberry & Pond, for plaintiff in error.

      P. G. PTolbroolc, for defendant in error.
   Christiancy J.

McGraw, the plaintiff below, recovered a judgment against Clark in an action of assumpsit for four thousand dollars and interest, which he claimed to have lent to Clark. Seven errors are assigned in this Court. No plausible ground being shown by the counsel for plaintiff in error, either in their brief or upon the argument, for the first, second, third, fourth or seventh assignments of error, and not having ourselves been able to discover any, we do not deem it necessary to notice them further.

The fifth assignment of error is based upon the admission of Cuthbert’s testimony, giving the conversation between himself and Clark, a few days before the money was obtained, in which Clark asked him if he thought he could get the money (§4000) of the plaintiff, if Mansfield did not get home in time to go to Port Huron with the money; and being answered by the witness that he thought he could, replied that he would see.

The question here presented is not upon the necessity of the evidence, nor upon its introduction at a particular stage of the case, nor whether, as independent evidence, it would alone have been sufficient to establish the loan; but whether, in connection with the other evidence in the cause, it was admissible. This conversation related to the same transaction between the witness and Saxton of the one part, and Clark of the other, to which both the former had already testified, and which had created the necessity on the part of Clark to raise this sum of money. The conversation tended to show Clark’s intention, in case Mansfield did not come in time, to apply to the plaintiff for the same loan which the testimony of the witness and Saxton, already given, tended to show he did apply for, through Saxton, a few days after, when it was known that Mansfield had not come in time. It therefore tended to show the understanding and intention of Clark, in the subsequent transaction with the plaintiff, and to corroborate the version of that transaction given by Saxton and the witness, and thus, in some degree, to prove that transaction a loan. In this view we see no reason to doubt its admissibility.

The sixth, and only remaining, error assigned which we deem it necessary to notice, is the refusal of the Court to charge that, “if the money was paid over to Rutlidge by Saxton, without the assent of defendant, it was not a loan by plaintiff to defendant.”

This request must be understood as having reference to the paying over the money under the circumstances disclosed hj the evidence, and to all the evidence in the cause bearing upon Saxton’s agency, and the question of a loan; and the charge requested would have been, clearly erroneous, if there was any legal evidence in the cause tending to show that it was a loan from the plaintiff to defendant, though it might have been paid over to Rutlidge without the defendant’s assent, since it was for the jury and not for the Court to weigh such evidence. If this request can be sustained at all, it can only be upon the hypothesis assumed by the defendant’s counsel in their previous request, that Saxton was, as between the plaintiff and defendant, acting as the agent of the plaintiff in making the loan and paying over the money. We have been unable to discover in this record any evidence tending to sustain this hypothesis. Whether, as between MeGraw and the bank, or between him and Saxton, in the mere manual operation of drawing the check, Saxton might, or might not be considered for certain purposes as the agent of MeGraw, we are not concerned to inquire. As between MeGraw and Clark, all the testimony bearing upon the question tended to show that Saxton was acting as the agent of Clark, from the time of the apjolication to MeGraw for the loan, until the amount was paid over to Rutlidge; and the testimony of Clark does not tend to show that, as between them, Saxton was acting as the agent of MeGraw in any part of the transaction.

The letter of credit taken by Saxton, and the check he drew upon the bank in the name of MeGraw, were but the mode or machinery, adopted for convenience, and as a substitute for the manual delivery of the money, and its transmission to Port Huron. And this mode, as the testimony tends to show, was adopted at the option and for the convenience of Saxton, who did not wish to carry the amount in the shape of money. Saxton being in this matter the agent of Clark, this mode of effecting the loan must be considered as adopted at Clark’s request and for his benefit. The power of Saxton therefore to draw the check must be treated as a power obtained at the request and for the benefit of Clark, and as between him and the plaintiff, in legal effect, the same as if given to himself. And though, if Saxton after arriving at Port Huron had refused to draw the check, there might have been no loan, the plaintiff not having parted with the money, yet this would have equally been the case, had the power been given to Clark and he bad failed to draw it. And when the check was drawn and delivered by Saxton, the loan was complete, whether appropriated by him, according to Clark’s wishes, or not. In legal effect the transaction consummated, (as the evidence tended to show,) by the letter of credit and the check was, as between the parties to this suit, the 'same as if McGraw had delivered to Saxton, or to Clark himself, his own cheek or the money, and Saxton or Clark had taken this with him to Port Huron, instead of the letter of credit; and McGraw could be no more responsible for the proper application of the money by Saxton in the one case than in the other.

The Circuit Court, we think, erred in charging the jury according to the second request of the defendant below, “ that under the testimony the loan, if ever made, was made at Port Huron, and not at Detroit, and that Saxton was the agent of the plaintiff in making the loan.” Unless the Court meant to make a distinction between the acts of Saxton in malting and in obtaining the loan, this charge was inconsistent with that which he afterwards correctly gave in answer to the request we have been considering; and if he intended to make such a distinction, and to say that, as between other parties than the plaintiff and defendant, Sax-ton was to be considered as the agent of the plaintiff, it was a point which did not arise in the cause, and tho charge upon this point was calculated to confuse the minds of the jury. But this error was corrected by the subsequent portion of the charge and the verdict, and was one of which the defendant could not and does not complain.

There is no error in the record affecting the validity of the judgment, and it must be affirmed, with costs.

Campbell and Cooley JJ. concurred.

Martin Oh. J. did not sit in this case.


text:
    Simeon Smith v. William Warner and another.

      Set-off in what cases allowable. The plaintiffs brought an action of assumpsit on a special contract for the sale and delivery by defendants of certain chattels, for which they were to receive pay in sawed lumber. The breach declared upon was the non-delivery of a portion of the said articles. The defendants were allowed by the referee in the Court below certain set-offs. Held, that this was an action for unliquidated damages, in which a set-off is not allowable.

      Liquidated damages. 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.

      Practice on a reference. The statute prescribes the mode of perfecting the report of a referee, and requires exceptions to be taken in the mode prescribed. It is incompetent for the Circuit Court to send back such a report to the referee for a re-consideration and argument upon a part of the case; if sent back for any thing but the correction of clerical errors, it must be for a new trial.

      Power of Court over reference, when made by consent. The case having been referred by cement to a particular referee, there is no power to appoint a new one without consent.

      New trial in reference cases, when no exceptions are taken. Whether a new trial may be granted as in other cases, without exceptions, upon affidavits of extrinsic matter, and whether a special reference should be rescinded entirely upon setting aside the report of the referee, is left for future decision.

      Heard Januany 4th.

      Decided April 10th.

    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 plead 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. *

      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 equify 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. O. Uolbrooh and G.V. JST. Pothrop, 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.

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, 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, 3 Leigh, 78; Handley v. Dobson's Admr. 7 Ala. 359; Gordon v. Bowne, 2 Johns. 150; Hopkins v. Megquire, 35 Me. 78; Babcock v. Peck, 4 Denio, 292; Luckie v. Bushby, 24 L. & Eq. 256.)

The set-off was not admissible, and it becomes unimportant to consider the other points discussed concerning it.

The next question to be considered is, whether the reference back to the referee, for the purpose of reconsidering a portion of the case, was proper. In order to determine this, it may be desirable to refer to the proceedings by which his report becomes perfected for filing. The statute requires him to find his conclusions of law and fact separately. — (L. 1861, p. 159 § 6.) Before the report is completed for filing, whenever exceptions have been taken by either party during the proceedings, both are to be notified of the time and place where the report is to be completed, and the referee is then and there to inform them of his conclusions, and time is then given for any one dissatisfied to prepare exceptions, and those exceptions are to be returned and filed by the referee with his report. § 8. Exception may also be taken after the report is filed, to any of its conclusions of law.

As exceptions were prepared and filed with the original report in this case, it must be presumed that all the steps were regularly taken to prepare them, and the parties must have been informed in advance what conclusions of fact and law the referee had arrived at. It is not shown or claimed that the referee made any error in computation, but the case was sent back to him to review the testimony, and make up his mind over again, concerning a part of the case upon which he had already come to a certain conclusion. If the defendants were dissatisfied with his views, they had an opportunity upon the several arguments before him to present their views, and to except to any conclusion they deemed unfounded. They took no exception whatever, but allowed the report to be prepared and filed, and then made an application to require him to reconsider his own conclusions of fact, upon a single point not referred to at all separately in his report, but included in its result.

The power of the Court to refer the case back to a referee is only given by the statute where exceptions have been taken, and is to be exercised upon hearing such exceptions. This reference back, for any further argument before an exercise of discretion by the referee, is evidently for the purpose of a new trial, and takes back the entire case. It is made by reason of some error which has been properly complained of. It would be a very dangerous thing to allow a. case to go back piecemeal, and to allow parties an opportunity of re-argument upon separate matters already considered, where no new evidence has been produced to change the face of the cause. A verdict once given in on the facts, which is legal and complete in itself, can never be properly sent back for re-argument before the jury on one or all of the issues; and it is difficult to perceive any good reason for permitting parties, where no error of law has been passed upon, to try experiments before a referee, who has had all the benefit of their proofs and arguments already. The statute plainly gives no such j>ower, but declares explicitly when a report may be sent back, and what shall' be the eflTect of a report not excepted to, or when the exceptions have been disposed of.

If there is new testimony discovered, or for any other such reason as would render a new trial on extrinsic grounds proper, the Court may perhaps use its general power to grant new trials, in eases which have been referred, as well as in other cases. But if this may be done, (which we do not now determine,) it can hardly be done by permitting a re-trial of any' thing less than the entire controversy. And, if the referee in engrossing his report, or in making up his computation, should make a clerical error, or one which may be corrected from the report itself, we are not disposed to say that at his request and representation the Court may not be authorized to restore it to him for correction. But the present is not such a case, and we therefore express no opinion upon the matter. Neither is it necessary in the present case to consider how far the Court may go in requiring a referee to make fuller statements of fact, where he has not embodied in his report a complete recital.

We think the report as now filed was unauthorized, and that there was also error in allowing the set-off. But as the first report was substantially set aside, and as it was erroneous also as against plaintiff, we cannot make it a basis of judgment. The judgment below must be reversed, with costs, and the case must be remanded for a new trial.

As the order of reference was made by stipulation to a referee named, there is no power to appoint a new one without consent. The practice in New York would seem to be, under such circumstances, not to refer back to the same referee, if objected to, but to rescind the reference. — (Sharp v. New York, 31 Barb. 578; Schermerhorn v. Van Allen, 13 How. Pr. R. 82.) But as it belongs to the Circuit Court to direct the course to be taken in the first instance, we cannot now give any directions upon the subject beyond reversing the judgment and ordering a new trial, and we do not desire to be understood as determining how far that practice should bind us. The point was not very fully presented and may be examined more thoroughly in the Court below.

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

Cooley and Christiancy JJ. concurred.

Martin Oh. J. did not sit in this case.


text:
    Daniel Salisbury v. Andrew Miller and another.

      Chancery practice. Amendment to MU. When further answer necessary. When a bill is amended merely by inserting the name of a new defendant, after the original defendant has answered, no further answer is necessary from the latter. Had new matter been introduced into the bill, he would have had a right to answer further.

      Indefiniteness in MU. The objection that a bill is too indefinite to form the basis of relief, cannot prevail under an answer, where no special demurrer is put in, unless there is a lack of such substantial averments as are necessary to make out a case.

      Bill to quiet title, what is not. A bill filed to correct a mistake in a deed of land claimed by one who obtained title from the same party who executed the erroneous deed, — and having notice of complainant’s equities, — is not a bill to quiet title under the statute, [2 Comp. L. § 3490]; and the objection that the proof does not make out an indefeasible legal or equitable title in complainant, is inapplicable.

      Costs. In such a case the refusal of the defendant to release having rendered a suit necessary, the Court below was right in imposing upon him all the costs of the cause.

      Heard April 5th.

      Decided April 10th.

    Appeal in Chancery from Washtenaw Circuit.
    This was a bill to restrain defendant Miller from asserting title to certain lands occupied by complainant, — which he also claimed to own.
    The facts are fully stated in the opinion.

      Joslin & Blodgett, for complainant.

      Norris & Ninde, for defendant Miller.
   Campbell J.

This was a bill filed to restrain defendant Miller from asserting title to certain lands .occupied by complainant, which he claimed also to own. The bill sets up that complainant purchased the property by contract from Martin Doty, and obtained a conveyance from Chauncey Joslin, who had become owner thereof subject to complainant’s rights, and to whom complainant made the payments not made to Doty. That, by a mistake of the conveyancer, the land was mis-described in both the contract and the deed. That before receiving the deed complainant began to improve the property, and during the first four years of Ms possession, and before the deed was made, he built a house and made other valuable improvements, and that defendant knew of such possession and ownership and improvements from the time the occupancy commenced. That about two years after complainant obtained his deed, defendant obtained from Joslin a conveyance of a tract which included complainant’s land, the reservation thereof having been omitted by mistake in this latter conveyance, but Joslin having during his negotiation with defendant Miller informed the latter of complainant’s title. The bill avers that Miller now claims title as against complainant to the land in controversy, and has refused to release. The bill prays for a release and injunction, and for general relief.

Miller answered, without oath, denying the allegations of the bill, and setting up that in April, 1856, he bargained with Joslin for the entire premises, including complainant’s land, for $2190, and having made or secured the payments stipulated for, he obtained a deed from Joslin in April, 1851, and was a bona fide purchaser of the entire tract, and obtained a complete legal title in fee to the premises.

The Court below upon the hearing required Joslin to be made a party, but no further amendment was made to the bill beyond adding his name. Joslin answered, admitting complainant’s entire case. No further proofs or pleadings were introduced, and the Court proceeded to grant a decree in favor of complainant, from which defendant Miller appeals.

It is claimed that it was irregular to proceed to a hearing after the hill was amended, without a further answer from Miller or a default. Had any new matter been introduced into the bill, he would have had a right to answer further, but where nothing but the name of a new defendant was introduced, no such step was required, as it in no way changed the aspect of the suit as against Miller. There was nothing new to answer.

It is also claimed that the bill is too indefinite to form any basis of relief. Such an objection cannot prevail under an answer, where no special demurrer is put in, unless there is a lack of such substantial averments as are necessary to make out a case. Defendant assumes that this is a bill filed under the statute to quiet title, and that therefore a complete and indefeasible legal or equitable title must be made out as against all the world. But this is not, we think, the fair construction to be placed upon the bill. It is based upon relations of privity, and not on a title assailed adversely. The case made is in brief, that complainant purchased the premises in question and. paid for them, and went into possession and improved them; that Joslin undertook to convey in pursuance of the original contract, but that by mistake the contract and deed both contained a false description; that defendant bought the remainder of the same government subdivision, knowing complainant’s rights, and being expressly informed of them by Joslin himself, before purchasing, and that a mistake also occurred in deeding to defendant the entire subdivision without reserving complainant’s premises. It is then the simple case of a person entitled to land which by mistake has not been conveyed to him, asking protection against one who has taken title from the same vendor with notice of his equities. The bill, although somewhat loosely drawn, is not defective in any matter of substance.

The same objection was followed up by the claim that the proof does not make out an indefeasible title in complainant or his grantors. But the answer sets out distinctly that defendant Miller claims under the conveyance from Joslin, and that he thereby obtained a perfect legal title. There was no occasion for complainant to fill up the defective links in the record title, as this assertion, which is so far an admission of the case made by the bill, removed any further necessity of proof in a case depending, as this does, exclusively on the mutual relations of these particular parties.

The only inquiries which become material are, first, whether complainant would have been entitled as against Joslin to have his title assured, and, second, whether Miller was a bona fide purchaser without notice from Joslin.

The testimony shows very plainly that complainant bought, and Joslin supposed he was selling, the disputed premises. Upon this there is no doubt whatever.

It is just as clear that Miller knew of complainant’s rights and claims. Not only was complainant shown to be in open possession, but Miller is shown by several witnesses to have personally seen his occupancy, and to have spoken of it in such a way as to show that he knew all about his claims. Joslin swears distinctly that he informed defendant’s father, (with whom all the negotiations were made,) of the exact rights of complainant, and that in computing the juice of the land a deduction was made from the whole tract of the number of acres now in dispute. The attempt of defendant, in his statements as witness, to refute the consistent testimony against him, is as discreditable to his sense as to his honesty. No one reading the proofs can entertain any doubt upon the real state of affairs.

The refusal on his part to release rendered this suit neces. sary, and the Court below was right in imposing upon him all the costs of the cause. The decree might properly have included a direction to release, but inasmuch as it is sufficient to protect complainant from molestation we shall not alter it, but simply affirm it with costs. The case will be remitted to the Court below, in order that the Register may certify the decree for record under the statute.

The other Justices concurred.


author: Cooley J.

text:
    Thomas Wright v. Janette DeGroff.

      Dower. Estoppel in pais and by deed. Statute of ¿Frauds. An administratrix sold certain lands of her late husband at Probate sale, and executed a deed in the usual form, with covenant of warranty against her own acts. Prior to the sale she agreed verbally with one who became the purchaser, that if a certain sum was bid for the premises, she would waive her right of dower. The premises were bid off in accordance with such agreement. Held, that such evidence had no tendency to create an estoppel; and that as there were no circumstances shown upon which a court of equity could decree specific performance, the Court would not enforce such an agreement indirectly, by declaring it an estoppel.

      Held, further, that at the most it was but an agreement that the purchaser should have conveyed to her a right which she knew the administratrix possessed, and that such an agreement was void under the Statute of Frauds.

      Held, further, that the deed having been given in the representative character of administratrix, the covenant against her own acts referred to such representative character, and would not preclude her from asserting her individual rights.

      Judgn\ent, reversal of. ¿Exclusion of evidence, effect of. A judgment will not be reversed for the exclusion of evidence unless that which was offered is admissible. If an offer of evidence has been erroneously ruled against, the party aggrieved is not bound to repeat his offer with other evidence of the same character {Olcott v. Hanson, 13 Mich. 453); but when that actually offered is inadmissible, the Court has no right to suppose that the party was restrained by the ruling from offering other evidence which was proper.

      Heard April 4th.

      Decided April 10th.

    Error to Livingston Circuit.
    This was an action for dower, brought by defendant in error.
    It appeared in evidence that plaintiff, as administratrix of the estate of George B. DeGroff, — her late husband, — sold by order of the Judge of Probate certain real estate of which he died seized. The deed of the administratrix contained the following clause: “ And I do hereby covenant with said .... that I will warrant and defend said premises, &e., unto the said, &c., and her heirs and assigns forever, against the lawful claims and demands of all persons claiming by, from or under me, but against no other persons.”
    On the trial, the defendant produced a witness who had acted as agent of the purchaser at the Probate sale, and asked him whether there was not an agreement between himself, as said agent, and the plaintiff, previous to the sale, by means of which she agreed to let her dower interest pass with the title sold and made at the administratrix’ sale of said real estate.
    Defendant also offered to show in evidence an agreement made, previous to the sale, by said administratrix and the purchaser, to the same effect, and also that plaintiff had admitted, subsequent to the sale, that she had parted with her dower by said agreement; which question and offers were ruled out as incompetent, illegal, and against public policy, and exceptions taken.
    Judgment was rendered for plaintiff.

      S. F. Hubbell and Norris & Ninde, for plaintiff in error.
    1. The question whether certain evidence would estop the defendant in error from asserting her claim of dower, was for the jury. 4 Dall. 300 (margin).
    2. A widow may, by acts, (not in writing,) put herself in such a position as that it would be a fraud upon the rights of others, for her to claim dower in real estate whereof her husband died seized. — 4 N. H. 321; 3 Yates, 508; 1 Randolph, 344; 1 Ind. 563; 2 Ham. 506; 3 Id. 5; 5 T. B. Mon. 518; 4 Paige, 94; 6 Johns. Ch. 194; 1 Story’s Eq. Jur. §§ 385-7.
    A widow’s dower is her private and individual right, and although she be administratrix of her late husband’s estate, she may dispose of it as she sees fit.
    3. The third assignment of error presents this question: What is the effect of her covenant of warranty on her administratrix’ deed? No such covenant is necessary or useful, except to bar her dower. In this deed the real estate is granted and conveyed, not the naked interest of the estate of George B. DeGroff. No reservation of, or allusion to, dower is made in this deed.
    If she be estopped by her covenant, the charge of the judge, given in this third assignment, is error.
    The point has been expressly so decided. 15 Vt. p. 649; 23 Miss. 585; 2 Comp. L. §§ 3070, 3045, 3059.

      4. The testimony offered, (which must be assumed true in this Court), coupled with the covenant of warranty, make a strong case of estoppel, which the jury should have passed on.

      M. J3. Willcox, for defendant in error.
    The testimony of Glenn was properly rejected.
    Dower before assignment is a mere chose in action. The widow has no estate in the land, nor any interest which she can assign or convey to another. 1 Washb. Real Prop. 251-2 ; 1 Barb. 500; 14 Mass. 378; 4 Paige Ch. 448; 1 S. & M. Ch. 489. All she can do is to release it, but she can only release it to one in possession, or one to whom she stands in privity of estate. 1 Washb. Real Prop. 252.
    The agreement, as sought to be proved, would be void by the Statute of Frauds, (Comp. L. § 3177,) and as against public policy.
    An agreement to put up the land free from the claim of dower, would not pass the dower unless she actually did so at the sale. Simply selling as administratrix, nothing being said as to dower at the time of the sale, does not estop her from setting it up in this action. 1 Washb. Real Prop. 205 ; 2 Harris, 442; 2 Comst. 59. To have that effect, the land must be offered free from the claim of dower, and that fact publicly announced at the time of sale.
    Evidence to show that the land sold for its full value, standing alone and independent of acts at the time of sale, affects nothing, because, whatever price may be paid, the statute prescribes what interest shall pass at such sales. 2 Comp. L. 919, § 32.
    The purchaser takes, subject to all “ charges thereon, by mortgage or otherwise.” The term “otherwise” embraces dower. 2 Comst. 249.
    Mrs. DeGroff’s admission made after sale “that she had parted with her dower, in and by such sale, and that she could not assert any claim to such dower by reason of her agreement as aforesaid,” is simply a conclusion of law — á confessio

      juris — and inadmissible. 1 Greenl. Ev. § 96 ; 4 Wend. 298-9; 8 Shep. 138.
    Dower does not come to the widow by contract, but by law; and whether she has done such acts as the law deems a release or relinquishment of her claim, is a question for the Court to decide, from the facts in the case, rather than the opinion of witnesses.
   Cooley J.

The right of defendant in error to dower is undisputed unless she has become barred on the principle of estoppel.' The plaintiff in error claims that she has; first, by her acts en pais ; and, second, by her covenant. ^

To establish the estoppel en pais, evidence was offered in the Court below to show an agreement made orally by Mrs. DeGroff previous to the sale by her as administratrix, that in case Mrs. Glenn would bid at the sale the sum of sixteen hundred dollars, and become the purchaser at that price, she, Mrs. De Groff, would never assert her right to dower in the land; that bid was made by Mrs. Glenn to the sum named, and that the land was struck off to her at that price, which was the full value of the land. The offer was also made to show statements and admissions of Mrs. De Groff, after the administrator’s sale, that she had parted with her dower in the land by that sale. All this evidence was excluded by the Circuit Judge.

We are unable to see that any of this evidence would have had any tendency to make out an estoppel. A person who has induced another to act upon the supposition that a certain state of facts exists, may by such conduct preclude himself from disproving such facts; and we may readily suppose a case in which a woman may so act in reference to lands in which she has a right of dower as to make this principle applicable. If it had appeared that Mrs. DeGroff had induced the purchaser to suppose that she had no dower in the land, and to buy it on that supposition, we should have had a very different ease presented from any that was offered to be shown. Here was at the most only an agreement that the purchaser should have conveyed to her a right which she knew Mrs. .De Groff to possess. There was no deception as to the facts; and the purchaser can only claim that an agreement made with her has not been kept. The agreement was void under the Statute of Frauds, and we do not perceive any circumstances upon which, in a court of equity, a claim to specific performance might be based; for Mrs. De Groff was to derive no personal benefit from it, and, if carried into effect, it would have given Mrs. Glenn an unfair advantage over other bidders at the administrator’s sale. If we are correo^ in this, it is difficult to suggest any principle that would warrant us in enforcing such an agreement indirectly by declaring an estoppel.

It is claimed by the plaintiff in error that the ruling of the Circuit Judge had the effect to exclude any evidence which he might have offered to establish an estoppel by acts m pais. We cannot reverse a judgment for the exclusion of evidence, unless that which was actually offered was admissible. If an offer of evidence has been erroneously ruled against, the party aggrieved is not bound to repeat his offer with other evidence of the same character.— Olcott v. Hanson, 12 Mich. 452. But when that actually offered is inadmissible, as in the case before us, we have no right to suppose that the party was restrained by the ruling from offering other evidence which was proper.

There is no room, we think, for putting upon Mrs. DeGroff’s covenant any snch construction as is claimed for it. The deed was given by her in her representative character as administratrix, and signed by her as such. The covenant against her own acts refers to such representative character, and we cannot suppose from the recitals or from the manner of execution, that she was understood to preclude herself thereby from asserting her individual rights. It is quite true that the covenant was not essential to the validity of the deed; but it was far from being meaningless, and might, under some circumstances, if the sale had proved defective, have given the grantee a right of action.

We think the rulings of the Circuit Judge were correct. Whether the reasons assigned by him were also correct is entirely immaterial, and we do not therefore discuss that question.

The judgment must be affirmed, with costs.

The other Justices concurred.


author: By the Court.

text:
    The People ex. rel. Chauncey W. Gibson v. The Clerk of the Circuit Court for Bay County.

      Judgment. When execution may issue. Where judgment is rendered at or near the close of a term of court, so that there is no time during the same term to move for a new trial or in arrest of judgment, and no such motion is made, the prevailing party is not required to wait until the following term for his execution to issue, hut may have it immediately.

      Submitted April 3d.

      Decided April 10th.

    Petition for mandamus.

      Isaac Marston, for relator.
   By the Court.

The petition sets forth that the relator obtained a judgment against John F. Cbafboneau in the Circuit Court for Bay County on the last day of the January term, 1866; that no motion Avas made for a new trial, or in arrest of judgment; and that he applied to the clerk of the Court thereafter for an execution upon said judgment, AAdrich was refused. The facts were admitted. Where judgment is rendered at or near the close of a term of court, so that there is no time during the same term to move for a neAV trial, or in arrest of judgment, and no such motion is made, the prevailing party is not required to wait until the following term for his execution to issue, but may have it at once.

Mandamus granted.


text:
    John S. Wallace v. Francis Finnegan.

      Note secured by collaterals maybe set off. The Court below rejected a note of $450 made by the plaintiff below, which was offered in set-off by the defendant, and for which the defendant held certain collaterals equivalent to a real estate mortgage. Held, that as the note could have been recovered by action it could also be set off, without delivering up the collaterals.

      Collateral securities do not hinder the right of action. A person holding collateral securities is not under any obligation to resort to them before suing upon the principal claim; but when that claim is satisfied he may be compelled to release or re-assign the collaterals. When such principal claim is made the subject of an action or of set-off, a court of law has no power to adjust the equities arising out of the holding of collaterals.

      >Set-off\ what can be. Nothing can be set off unless it could be sued upon, and, on the other hand, any claim coming witnin the statute can be set off if it could be sued*

      Heard April 10th.

      Decided April 17th.

    Error to Berrien Circuit.
    This was an action of assumpsit on the common counts. Defendant plead -the general issue and. gave notice of set-off.
    The case turns upon the rejection by the Court of a certain set-off offered by the defendant, and which is sufficiently stated by the Court. Judgment was rendered for plaintiff.

      D. D. Hughes, for plaintiff in error.

      F. Muzzy, for defendant in error.
   Campbell J.

The only point which is very clearly presented by the bill of exceptions in this case is, whether a note held by the defendant below was properly rejected when offered as a set-off, unless certain collaterals should be surrendered. The defendant below received from Finnegan, as security to this note of $450, an assignment of certain other notes secured by a real estate mortgage. The assignment was absolute in form, but was accompanied by a defeasance, which provided that if Finnegan paid the $450 note at maturity, the securities should revert to Mm, but if not they were to become the absolute property of Wallace. This assignment itself was in effect a real estate mortgage, and subject to a similar equity of redemption, and left the $450 note an existing liability as before.— Graydon v. Church, 7 Mich. 86. A person holding a collateral security is not bound, unless he chooses, to resort to it before suing upon his principal claim. When that claim is satisfied he may be compelled to release" or re-assign the collaterals, but Ms right to sue the claim itself is an absolute one, not in any way affected by his possession of the securities, and he cannot therefore be compelled to surrender them as a condition of enforcing Ms legal demand. Nothing can be set off unless it could be sued upon, and on the other hand any claim coming within the statute can be set off if it could be sued. A court of law has no power to enforce such equities as may result to Finnegan in the securities from the allowance of the set-off, and even if it had this power, the court could not assume that the entire verdict might not be in Wallace’s favor. If, after allowing the set-off, Wallace is still found in debt to Finnegan, the latter has other remedies to recover the collaterals, if Wallace should see fit to withhold them. But if the set-off brings Finnegan in debt, Wallace may properly hold them for the balance. There was error in refusing to allow the set-off without a surrender of the securities, and Wallace was not bound to surrender them as a condition of its allowance.

The charge upon other points is very obscure, but, as it is somewhat difficult to apprehend its precise bearing, we shall not attempt to review it, as the case goes back upon the question of set-off.

Judgment must be reversed, with costs, and a new trial must be granted.

Christiancy J. and Martin Ch. J. concurred.

Cooley J. did not sit in this case.