DocketNumber: Docket No. 95
Citation Numbers: 177 Mich. 406
Judges: Bird, Brooke, Kuhn, McAlvay, Moore, Ostrander, Steere, Stone
Filed Date: 10/10/1913
Status: Precedential
Modified Date: 9/8/2022
Plaintiff brought suit against defendant before a justice of the peace for Wayne county, declaring orally in an action of assumpsit and on all the common counts, and especially on a certain written lease for a certain rent claimed to be due. The defendant pleaded the general issue and “gave notice of set-off and recoupment.” It is claimed by defendant that on the trial before justice’s court a bill of particulars of his recoupment was filed with the court, and testimony in recoupment was offered and introduced in evidence and considered by the court. Plaintiff claims that this bill of particulars Was not filed with the justice, but does not deny that the question of recoupment was litigated. Plaintiff’s only claim was for two installments of rent under this lease, amounting to $250. The trial before the justice was without a jury, and resulted in a judgment against defendant for the sum of $199 and costs. Defendant appealed from this judgment to the circuit court for Wayne county, where the case came on to be heard before a jury. During the trial, while defendant was putting in his proofs, objection was made for the first time that no proper notice of recoupment had been given, and therefore that testimony upon such recoupment was not admissible under the pleadings. It appeared in the proofs in the case that there was a provision in the lease that plaintiff, as lessor, agreed to fix the roof of the barn upon the premises leased. The words of the lease necessary to be quoted are:
“The first (party) agrees to shingle house and fix roof on barn.”
The roof of this barn covers a part used as a horse barn, and also that part used as a cow barn. Plain
The principal contention in the case is upon the exclusion by the court of all evidence showing recoupment, on the ground that no proper notice of recoupment had been given. Upon this proposition the record shows, from the return of the justice, that the pleadings in that court, both on the part of plaintiff and defendant, were oral. It appears from the record of the trial in the circuit court that in justice’s court defendant put in his defense of recoupment, and the amount of the judgment indicates that such recoupment was allowed in part. During the discussion before the court counsel for plaintiff in effect admitted that a bill of particulars of defendant’s
This court has repeatedly held that justice court pleadings should be viewed with liberality, technicalities discountenanced, and substance instead of form required. This claim of recoupment, the bill of particulars of which was presented to the justice and used without objection upon the trial by defendant, and upon the testimony which defendant gave under it he was cross-examined by plaintiff, was sufficient, added to the pleadings in the case, to warrant the justice in receiving testimony under it, and also to give notice to the plaintiff of this nature of the claim of defendant with sufficient certainty to prevent surprise as to what he would be called upon to meet with his proofs. Whether the justice marked the paper as filed in the case does not appear. Plaintiff’s attorney says he'is informed it was not filed. The entire purpose and sole requirement of pleadings in justice’s court is to inform the opposite party what he will be called upon to meet. This knowledge plaintiff had in the justice’s court, and accepted without protest or question, as far as the record shows. He made no claim that he was surprised. Counsel for plaintiff, and apparently the court, relied upon the case of Watkins v. Ford, 69 Mich. 357 (37 N. W. 300). We think that the cases are distinguishable. In the instant case, by the itemized bill of particulars upon which the defense was based in justice’s court, as already stated, plaintiff was informed of defendant’s claim, while in the case relied upon and the other cases cited, nothing appears to have been brought to plaintiff’s notice but the general state
In the motion for a new trial made by defendant this matter of his contention that he was entitled to introduce evidence in recoupment on his defense was emphasized and called to the attention of the court as one of the reasons why a new trial should be granted. From what has been already said upon the subject, our conclusion is that the court was in error in refusing to allow defendant to show recoupment, and also in refusing later to grant a new trial.
The judgment of the circuit,court is reversed, and a new; trial is granted.