Smith-Douglass v. Walch

209 N.W.2d 725, 47 Mich. App. 624, 1972 Mich. App. LEXIS 1128

Opinion

Per Curiam.

The plaintiff brought this action seeking to recover damages for a breach of contract. A jury found no cause for action and the plaintiff has appealed.

By the defendant’s own admission he owes a debt, but at trial he disputed the amount and contended that the debt was really owed to a third party. The record clearly shows that the debt is owed to the plaintiff. There is no evidence that the debt was owed to a third party. The defendant’s testimony that he owed a third party merely shows that he was mistaken on the question of whom he owed. In McConnell v Elliott, 242 Mich 145, 147 (1928) it was said:

"We should set aside a verdict, and only set one aside, when it is against the overwhelming weight of the evidence.”

Such is the situation in this case.

If we accept the figures used by the defendant’s counsel at trial the defendant is indebted to the plaintiff at least in the amount of $2,464.80. The plaintiff now seeks recovery in this amount.

Reversed and remanded with instructions to enter a judgment notwithstanding the verdict in the amount of $2,464.80, together with interest from the date of filing of the complaint. Costs in both courts to the plaintiff.