was afflicted with permanent paralysis of either extremity" and for him to recover the jury must find "that he was permanently paralyzed below the knee to such an extent that he will be permanently disabled and incapacitated from performing all manual labor on account thereof." We think the issue was well guarded and fairly submitted to the jury, and, without deeming it important to discuss in detail the further assignments of error directed to admission of evidence and the charge of the court, conclude that no prejudicial or material error is shown which indicates a miscarriage of justice resulted. The judgment is affirmed. BIRD, C. J., and MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred. OSTRANDER, J., did not sit. WARD v. TOWNSHIP OF ALPINE. 1. RECOUPMENT-CONVERSION-CONTRACTS-BREACH OF CONTRACT— DAMAGES. In an action against a township by the assignee of a contractor for the conversion of certain steel for concrete reinforcement used by him in the construction of a bridge which was rejected by defendant, and torn down and the steel used by it in a new bridge built according to the original plans and specifications, the court below was in error in rejecting defendant's claim of recoupment for damages in removing the defective bridge. In an action for conversion, the doctrine of recoupment is applicable whether the action is founded in tort or in contract; the right being the same. 3. SAME-NATURE OF CLAIM-WHEN APPLICABLE. Recoupment is not strictly limited to the exact provisions of the contract sued upon; it is sufficient that the counterclaims arise out of the same subject-matter, and that they are susceptible of adjustment in one action. 4. APPEAL AND ERROR-ERRONEOUS ASSUMPTION-RIGHT RESULT AFFIRMED. Where the evidence supported the finding of the court below that the damage to defendant resulting from the nonperformance of a contract to build a bridge exceeded the value of certain steel converted by defendant, the judgment for defendant will be affirmed, although erroneously based upon the assumption that the steel imbedded in the concrete had no value. Error to Kent; Brown, J. Submitted October 16, 1918. (Docket No. 80.) Decided April 3, 1919. Assumpsit by M. Thomas Ward against the township of Alpine for the conversion of certain steel. Judgment for defendant. Plaintiff brings error. Affirmed. M. Thomas Ward (Ellis & Ellis, of counsel), in pro. per. Earl F. Phelps, for appellee. STEERE, J. On December 10, 1915, M. Thomas Ward, plaintiff, by M. Thomas Ward, plaintiff's attorney, commenced an action against defendant in the circuit court of Kent county by filing and serving a declaration charging defendant under the common counts in assumpsit with being indebted on the first day of November, 1915, to George LeVan in the sum of $200, which indebtedness was averred to have been assigned to plaintiff by said LeVan for a valuable consideration, on November 30, 1915, and defendant though often requested had not paid the same or any part thereof, to plaintiff's damage one thousand dollars, and therefore he brought suit. On request for a bill of particulars after entry of appearance by Earl F. Phelps, defendant's attorney, plaintiff "in proper person" furnished the same, informing defendant that the action was brought to recover the following demand: ..... 1915, October, Hand Rail ... .$170.00 6.00 16.00 2.00 $194.00" After being thus advised, defendant pleaded the general issue, with a lengthy notice of special defense that the work, labor and material furnished for which plaintiff's action was brought, if any, were done and furnished under a special contract in writing by which LeVan undertook to build a bridge for defendant, in which undertaking he failed miserably to defendant's injury and damage in the sum of $300 for which it made claim by way of recoupment. On the trial of the case before the court without a jury the testimony developed complications which led the court to offer the following reflection, with which we do not disagree: "This entanglement involves a good many different lines and ramifications. It probably would be difficult for a designing mind to get an entanglement with more avenues of approach or more alleys of escape, if you were getting up a knotty question to see if you could not somewhere trip somebody who claimed to be untrippable." The court thereafter made a finding of facts with conclusions of law thereon holding that plaintiff could. not recover. Proposed amendments by plaintiff to such findings were refused and defendant had judgment. Exceptions to the refusal to amend findings, conclusions, etc., were duly taken and the case re moved to this court for review on 26 assignments of error. Most of the facts out of which the litigation arose are not in dispute. The subject-matter of the litigation was a quantity of steel for concrete reinforcement bought, but never paid for, by LeVan from the Concrete Steel Company of New York to be used by him in performance of his contract to construct a small concrete bridge over Mill Creek in a highway of the defendant township of Alpine. The price of this steel as purchased by LeVan from the concrete company was $170 which did not include a steel hand rail procured by him from the same source for, as he testified, "in the neighborhood of $15, $18, $20, somewhere along there." The plans and specifications for the proposed bridge were prepared and the contract let for its construction by a firm of civil engineers named Riser & Christ, representing the township in that transaction, and LeVan secured the contract which was dated November 24, 1914, by which he was to furnish all necessary tools, labor and material and construct the bridge in a good and workmanlike manner according to the plans and specifications, made a part of the contract, for $628 and complete the same before December 15, 1914. He thereafter entered upon the construction of the bridge and some time "during the winter of 1914-15" notified the township of its completion, just when is left to surmise. He testified that he built the bridge of cement, steel and gravel and said: "I put this steel into the bridge and went on and finished up the bridge so that I thought it was finished. It could have a coat of whitewash in the spring; that is what it should have, is about all." The township by its officers and the engineers who designed the bridge then inspected it and determined that it had not been constructed in accordance with the plans and specifications, was of weak, unworkmanlike and faulty construction, hopelessly unsafe for public use and an obstruction in the highway which it was necessary to remove before a safe and proper bridge could be built, its greatest infirmity being in the quality of the cement, claimed to be weak, crumbling and interspersed with cracks. Acceptance was refused and LeVan so notified with demand that he comply with his contract by constructing a proper and safe bridge according to the plans and specifications. He took no steps to comply with the demand and after waiting until August 31, 1915, the township let a contract to one Robertson by the terms of which he was to tear down and remove out of the way the bridge LeVan had built and construct another in its place according to the same plans and specifications in relation to which LeVan had contracted. His price for the new bridge was $600, he to use the old railing, allowing $20 therefor, and the old reinforcing steel, allowing 1c per pound for the same, which LeVan had used in the rejected bridge he built. For tearing down and removing the LeVan bridge out of the way he was to receive $200 and of this work it was specified: "4. In tearing down the present bridge span care must be taken to save as much as possible of the imbedded steel and the pipe railing, as it is the intention to use as much as possible of this material in the new bridge span. "5. The concrete of the demolished span shall be broken up and deposited on the banks adjacent to the bridge as directed by the commissioner. "6. The old steel must be thoroughly cleaned from all dirt and concrete, restraightened and if necessary rebent to the original shape." The abutments to this bridge were not put in by LeVan, but by the township, and in the opinion of |