Faith United Church of Christ v. Westfield Topsoil & Sand Co.

Per Curiam.

In October 1966, plaintiff filed a complaint in the Circuit Court of Macomb County alleging that defendant had breached a contract. Plaintiff sought damages of $2,000 plus the cost of having certain additional work performed by third parties. The following month defendant filed an answer and counter-complaint alleging that plaintiff was responsible for failure of performance. Defendant sought damages of $5,000 as a result of economic loss due to plaintiff’s alleged breach,

In the summer of 1968, after a three-day trial, the trial judge, sitting without a jury, entered a judgment in favor of plaintiff and against defendant Westfield Topsoil & Sand Company in the amount of $2,000. The trial court dismissed defendant’s counter-complaint and also the complaint against the defendant Sabastian Mancuso. This appeal is brought from the denial of defendant’s motion for a new trial.

The defendant seeks to raise two issues on appeal. He argues first, that the determination and findings of the trial court were not supported by evidence.

A reading of the transcript demonstrates testimony was given which if accepted by the trial court was sufficient to support its determination. The findings were not clearly erroneous under GCR 1963, 517.1, and therefore are affirmed.

Defendant’s second issue is with regard to the existence of mutual rescission of the contract.

“This theory was neither pleaded nor raised below, and it is not before this Court. Dwelley v. Tom McDonnell, Inc. (1952), 334 Mich 229.” Snider v. Dunn (1968), 11 Mich App 39, 44.

Affirmed. Costs to plaintiff.