This is a replevin action brought to repossess a concrete-block-making machine under the terms of a chattel mortgage because of default of instalment payments. Defendant answered claiming set-off and recoupment cognizable in a suitable action in a law court and moved to transfer the action to the equity side of the court to permit him to make equitable defenses and to enable him to apply his damages if the equity court should award them to him on the defaulted instalments and thus bring his contract out of default and defeat the replevin action. The trial court denied defendant's motion to transfer to the equity side. Defendant appeals from such denial. Appellant further claims (a) that since neither set-off nor recoupment can be urged in a replevin case (the only issue being right of possession) defendant in the instant case does not have an adequate remedy on the law side of the court; (b) that equity can take jurisdiction where fraud is alleged, and in his brief but not in the motion to transfer in this case defendant claims he was defrauded by plaintiff's false representation that the machine would make both 8-inch and 12-inch *Page 248 blocks; and (c) that defendant in an independent suit at law could not obtain service upon the nonresident plaintiff in this jurisdiction.
Defendant bought the machine in question with appurtenances from plaintiff August 13, 1941. On December 5, 1941, after using the machinery for about three months with admittedly good results in making 8-inch concrete blocks, defendant gave plaintiff the chattel mortgage before mentioned with accompanying note calling for payments on instalment plan. Thereafter defendant defaulted as to the payments due in April, May, June and July, 1942. Defendant answered the replevin declaration, setting forth breach of warranty that the machine and accessories were new and would turn out good 8-inch and 12-inch cement blocks but that the machine failed when he tried to make 12-inch blocks in the latter part of October and in November, 1941. With the answer defendant filed a cross declaration claiming breach of implied warranty, damage to his business, and added common counts in assumpsit. This cross declaration was attacked by a motion and by consent of both parties the court ordered it dismissed.
The only defense left in the record is breach of warranty which is actionable at law.
We cannot now know just what sort of statements defendant would make in his pleading if the cause were transferred, if different from his answer. No sworn pleading is tendered to be filed in case transfer to the equity side of the court is ordered. The transfer statute relied on by the defendant is 3 Comp. Laws 1929, § 14008 (Stat. Ann. § 27.652).
It appears that the machinery has been repossessed, sold at foreclosure sale, and some months later taken to Elmore, Ohio. Plaintiff claims defendant and his attorney had notice of the foreclosure. *Page 249
Defendant says in his motion to transfer that he is advised that on or about September 25, 1942, the foreclosure sale took place, that later the property and equipment were removed by plaintiff beyond the jurisdiction of this court and contends the sale was void under the law and that plaintiff had no legalright to foreclose and that therefore the sale should be set aside. It further appears the defendant is an Ohio corporation not doing business in Michigan. Such corporation was subject to having its property in Michigan attached and defendant admits his knowledge as to the foreclosure. The courts of Ohio are open to defendant.
Plaintiff denies the breach which defendant claims. The replevin suit was properly begun and could only be begun on the law side of the court. It is the only remedy to obtain possession of specific personal property. Corbitt v. Brong, 44 Mich. 150,152. Damages for which plaintiff might be liable do not constitute a defense. Dearing Water Tube Boiler Co. v.Thompson, 156 Mich. 365, 368 (24 L.R.A. [N.S.] 748). See, also, 3 Comp. Laws 1929, § 14132, subd. 4 (Stat. Ann. § 27.826). Defendant claims he is still the rightful owner and entitled to the possession. The issue in the replevin suit is right of possession.
The declaration claims damages not to exceed $3,500 but fails to specify whether the damages are claimed for wrongful detention of the property, for damages to the property, or for some other cause. The damages in replevin where the property is recovered must be limited to a fair compensation for the use of the property, together with such special damages as necessarily accompanied the detention, and any actual injury to the property.Aber v. Bratton, 60 Mich. 357. See, also, 3 Comp. Laws 1929, § 14838 (Stat. Ann. § 27.1836, and cases there cited). *Page 250
Defendant's answer claims damages by reason of the failure of the machinery to function as warranted, but fails to state the amount claimed; his cross declaration did state the amount but that was dismissed by his consent. Apparently if defendant had obtained leave suitably to amend his pleadings, he could have counterclaimed or set off at least pro tanto his damages against claims of plaintiff properly pleaded and proven.
Defendant let slip the opportunity to attach the property while it was still in Michigan and therefore did not make the most of his legal remedies. He sat idly by, making no protest or warning, while plaintiff incurred the expense of sale of the property, storage for four months in Michigan, and of transfer of the property to Elmore, Ohio, besides whatever may have been done in reconditioning the property after several months' use. After such dilatory tactics, it would be inequitable to subject plaintiff to further expense without at least a sworn statement of merit by defendant.
We have read the opinion by Mr. Justice BOYLES and consider defendant's conduct does not merit the favor that opinion would bestow.
We conclude defendant has an adequate remedy at law.
The order denying the petition for transfer should be affirmed, with costs to plaintiff.
SHARPE, J., concurred with REID, J. WIEST, J., concurred in the result.