Petosky Asphalt Paving Co. v. Malow

363 Mich. 13 (1961)

108 N.W.2d 768

PETOSKY ASPHALT PAVING COMPANY v. MALOW.

Docket No. 6, Calendar No. 48,917.

Supreme Court of Michigan.

Decided April 26, 1961.

George Silitch, for plaintiff.

Matthews, Nank & Bruff (Reinhardt A. Nank, of counsel), for defendant.

PER CURIAM:

In 1957 defendant Malow, then as plaintiff, sued plaintiff Petosky Asphalt Paving Company, then as defendant, in Detroit common pleas to recover the allegedly agreed price of road gravel delivered by Malow for Petosky on 4 public road *14 jobs. In that suit Petosky gave notice of setoff and recoupment, alleging that the delivered gravel did not satisfy contract specifications and, on account thereof and related allegations, that Petosky had suffered damages recoverable against Malow in the sum of $3,000.[*]

Trial to the common pleas judge resulted in a judgment for plaintiff Malow and against defendant Petosky in the sum of $2,705.07 and judgment disallowing the pleaded counterdemand. Defendant Petosky appealed and the circuit court reversed with remand to common pleas for a partial new trial. According to Petosky's counsel the common pleas judge thereupon "challenged the right of the circuit court to reverse his findings and refused to grant a partial new trial * * * and reinstated his original judgment for plaintiff." Another appeal was thereupon taken to circuit where, according to all counsel, it awaits judicial disposition.

The present suit was filed June 22, 1959, in the Macomb circuit, by Petosky as plaintiff against Malow as defendant. The declared cause is the same cause as was counterpleaded and remains counterpleaded in common pleas. The only difference is that the amount of the bill of particulars has been increased, over the particularized amount billed in common pleas, to $11,240.36.

Defendant Malow moved to dismiss. Judge Spier granted the motion. Plaintiff Petosky appeals.

Affirmed on authority of Chapple v. National Hardwood Co., 234 Mich 296 (44 ALR 804). Costs to defendant.

DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.

[*] Defendant Petosky's counterclaim totaled $7,647.20. However, for the pleaded purpose of bringing the demand within common pleas jurisdiction, Petosky voluntarily reduced the amount thereof to $3,000.