Josselyn v. Bishop

25 Mich. 397, 1872 Mich. LEXIS 120

Opinion

Ohristiancy, Oh. J.

The first charge given at the request of the plaintiff below (defendant in error), was erroneous. There was no evidence tending to show that the plaintiff had repudiated the agreement alluded to, before making any sales of the five gross of instruments delivered to him by defendants.

We need hot notice the second charge given at the request of the plaintiff, as it is not claimed by the defendants (plaintiffs in error), that they had the right to set off their damages for the breach of plaintiff’s contract to convey to them the sole right of selling in certain territory.

The third charge given at the request of the plaintiff, was erroneous in assuming that, under the testimony, the contract as to the five gross, was a part of the whole contract (meaning to convey territory by the one part, and to sell in that territory by the other). The evidence tended to show that the contract as to five gross to be sold by the plaintiff, was a separate contract, on the faith of which the defendants delivered to him the property he was to sell. There was nothing to show that defendants ever •refused to give their note Tor this property, according to agreement; and plaintiff’s repudiation of the contract for conveying the territory, could not operate as a repudiation of this contract in reference do the five gross he had received, while he continued to hold the property obtained on the faith of it, or the proceeds obtained for it.

The court also erred in refusing to charge, as requested by the defendants (below), that, “if the jury find from the evidence that plaintiff received five gross of the attachments, under an arrangement that the plaintiff was to sell the attachments, and to give to the defendants the thirty-six dollars profit per gross, on all moneys received on the sale of these attachments, then the defendants are entitled to set off against plaintiff whatever sums of thirty-six dollars profit per gross the jury find the plaintiff received under this arrangement.”

It is unnecessary to notice the second request of the defendants, which was refused, as our opinion upon the other grounds stated, sufficiently covers this.

The judgment of the circuit court must be reversed, with costs, and a new trial awarded.

The other Justices concurred.