the years prior to 1909, amount to little more than mere conjecture. The drive of 1909, however, was sorted by the plaintiff, and as to this drive we think the testimony fairly presents a question of fact for the jury as to whether the defendant scaled and accounted for all of the logs delivered to it.

"Fourth. There is no testimony in the record of sufficient definiteness to warrant the jury in finding that the plaintiff suffered any damages on account of delay in sawing the logs, and the defendant's testimony is full and positive to the effect that no loss occurred by reason of the sinking of the logs. The case of plaintiff is based upon conjecture, met by definite and positive testimony, and the jury should have been instructed that no damages could be awarded for this alleged breach.

"Fifth. Under this head, also, the testimony for plaintiff is too vague, indefinite, and limited to furnish any basis for a definite award of damages. Furthermore, the testimony of the men who actually did the work of manufacturing, and who kept the tally agreed upon in the supplemental agreement, is all to the same effect; that the work was done and the tally kept in the usual way, and as defendant handled its own logs, and in this form of action such tally is conclusive on the plaintiff.

"The Defense of Recoupment.

"It is manifest that the principal object of the lumbermen in entering into the contract was to obtain the delivery of their deadhead and sunken logs at their mills at the earliest practicable moment. To this end the contract required plaintiff, each year after 1905,' to 'make at least one drive or delivery of all floatable logs to said second parties.' A failure of plaintiff to deliver to defendant in the drive of one year all of its then floatable logs raised and skidded the preceding year would be a breach of the contract, for which it would be liable in damages for any injuries to such floatable logs thereafter, whether from forest fires, floods, the weather, or other

causes.

"The contract concerned 'deadhead' and 'sunken' logs only, and plaintiff had no right under the contract to advances upon any other kind of logs. If plaintiff lifted and skidded other kinds of logs belonging to defendant, and caused them to be scaled and reported to defendant as 'deadhead' and 'sunken' logs, and re

ceived advances because thereof, this constituted a breach of the contract on its part, and entitled defendant to recoup to the extent at least of such advances. The contract does not define the terms 'deadhead' and 'sunken' logs, and there is a conflict of testimony as to what kind of logs constituted such logs, so that it was a question of fact for the jury as to whether the logs in question were 'deadhead' and 'sunken' logs or not. And we are of the opinion that the court erred in instructing the jury that the determination of this question was committed to the scalers by the contract, and that if they acted in good faith their determination was final. Mr. Babcock's instructions to the scalers were 'to scale all logs lifted.'

"We are also of the opinion that the court erred in his instruction relative to certain logs which had been banked and skidded in 1906 or 1907, and which defendant claimed had largely deteriorated in value through not being brought down as required by the contract. After instructing the jury that defendant would be entitled to damages for such depreciation, the court further said:

"But, gentlemen, that instruction is qualified, and I want you to mark the qualification, because it is somewhat complicated. It is the claim of the plaintiff in this case that it has been hindered in its operations under this contract, because the defendant has not paid it the moneys that it claims to be due from the defendant; and I say to you, if the logs above jam 1 have remained there because of the default of the defendant in not paying what you find to be due plaintiff under the contract, you will not allow the defendant anything at all either for depreciation or loss of logs above jam 1.'

"There is no evidence upon which to base this qualification. Plaintiff made no demand upon defendant for money due it under its construction of the contract, nor intimated to the defendant that it was construing the contract differently from defendant, till late in 1908. On the contrary, Mr. Babcock testified that they refrained from making bills on defendant for moneys due upon delivery of logs:

"We sent no bill for the balance due, because by sending a bill I believed we would be admitting the correctness of the reports for lumber delivered at the mill of the defendant and the other mills during the existence of this contract. The reports I refer to are the mill tallies of 1906 and 1907, and the lumber tallies for 1906 and

1907, and the lumber tallies for 1908 and 1909, showing the lumber delivered under the contract and logs delivered under the contract.'

"Under such circumstances we think that the qualification should have been omitted.

"We find no error in the rulings of the court rejecting statements of Mr. Cartier as to abandonment of the contract, nor in instructing the jury that there was no evidence in the case of a voluntary abandonment.

We have only considered such of the 377 assignments of error as we deemed necessary to settle the legal principles upon which a retrial should be had, and which should be sufficient for determining the questions of fact in the case. The record is unduly voluminous, and, for purposes of taxation of costs, will be limited to 500 pages, and the briefs to 200 pages.

The judgment is reversed, and a new trial ordered.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, and OSTRANDER, JJ., concurred

SHARPLESS SEPARATOR CO. v. BROWN.

1. SET-OFF AND RECOUPMENT-CONTRACTS-ASSUMPSIT — RECOUPMENT FOR DAMAGES RESULTING FROM LABOR Expended on SUBJECT MATTER-SALES.

Recoupment must arise out of and be based on the contract de clared on and proved by plaintiff.

2. SAME JUSTICES OF THE PEACE-PLEADING.

Defendant, who established his claim that the contract under which he purchased a cream separator was conditioned upon its working properly, and that the machine failed to work, could not recoup his damages in an action on the common counts, instituted before a justice of the peace, for labor and materials expended in attempting to make the separator operate satisfactorily, the contract established by the verdict being different from the one relied on by plaintiff.

Error to Shiawassee; Miner, J. Submitted June 26, 1911. (Docket No. 112.) Decided March 20, 1913.

Assumpsit by the Sharpless Separator Company against Fred Brown and another for the purchase price of goods sold to defendants. Judgment for defendants. Plaintiff brings error. Reversed unless defendants remit judg

ment in recoupment.

Walbridge & Kelley, for appellant.

A. L. Chandler and George E. Pardee, for appellees.

BIRD, J. The plaintiff began suit in assumpsit to recover the purchase price of a cream separator which it claims to have sold and delivered to defendants on their written order. The defendants resisted the claim on the ground that the sale was a conditional one, depending upon the separator doing good work and working as well as other separators which were then being sold upon the market; that a test was made of the separator; that it failed to work as represented; and that plaintiff was advised of its failure to do the work and of defendants' refusal to purchase it. The defendants also gave notice under their plea that they had expended money and labor in their efforts to make the separator work satisfactorily and that they would claim the right upon the trial to recoup and offset the same. As the testimony was in conflict as to what the contract was, the trial court submitted the question to the jury to determine whether it was absolute or conditional. They found with the defendants and assessed their damages at $10.

While the trial court was submitting the case upon defendants' theory to the jury, he made use of the following language:

"If defendants are entitled to recover, they would be entitled to recover certain damages, if you find they were put to any damages. So in this case, if defend

174 MICH.-2.

*

*

ants are entitled to recover, and you find that Mr. Brown and his man and team or automobile, whichever it wasI don't remember-went to Mr. Leonard's and spent certain time in trying to make the machine run, whatever that time was worth, whatever expense he incurred at that time in paying his man or whatever his team was worth or automobile, whichever it was, he would be entitled to a verdict for that amount."

Plaintiff insists that this instruction was error for the reason that, if the jury found with defendants that the contract was different from that sued upon, the law would permit of no recoupment.

The rule is general in assumpsit that recoupment must grow out of the contract sued upon. Molby v. Johnson, 17 Mich. 382; Rens v. City of Grand Rapids, 73 Mich. 237 (41 N. W. 263); Helwig v. Lascowski, 82 Mich. 619 (46 N. W. 1033, 10 L. R. A. 378). Applying this rule to the case under consideration, it follows that, if defendants were permitted to recoup, it would have to be against the contract which plaintiff sued upon, and not against the contract which it set up in opposition to plaintiff's. A similar question arose in the case of Haldeman v. Berry, 74 Mich. 424 (42 N. W. 57). The plaintiff and defendant disagreed as to what the contract was, and defendant was allowed to recoup certain damages which he claimed. In commenting upon that phase of the case the court said:

"But, under the circumstances of this case, we are satisfied that the recoupment pleaded by the defendants cannot be maintained. As already shown, the plaintiff sued upon a contract which did not exist. He declared evidently upon the memorandum of February 14, 1882, left by Collins with Mason. This was not the contract. The contract was closed on February 17, 1882, by the reply of Collins to the letter of Mason, which modified and altered the memorandum as to the time of the delivery of the asphaltum. The plaintiff must fail, because he cannot establish the contract he declares upon. Can the defendants, in their defense, prove another and different contract than the one sued upon, and then recoup dam