
    DATTNER v. WEISZ.
    1. Justices of the Peace — Appeals—Pleading—Laches — Discretion of Court — Abuse of Discretion.
    Where nearly four months had elapsed after an appeal was taken in an action in the justice’s court by one broker against another to recover plaintiff’s share of a commission for assisting in the sale of a saloon, stock, fixtures and business before plaintiff filed the notice for trial of the case in the circuit court, and nearly five months elapsed from the time the appeal was taken to the time of the trial, and during such time defendant took no steps to form an issue, the court did not abuse its discretion in refusing to allow defendant to file a plea of the general issue, with notice of failure of consideration and illegality of contract in place of a plea of the general issue only.
    2. Same — Appeals—Pleading—Judicature Act — Court Rules.
    Under the judicature act, Act No. 314, Pub. Acts 1915, chap. 78, § 17 (3 Comp. Laws 1915, § 14417), providing that on filing the return of a justice of the peace the circuit court shall become possessed of the cause the same as if it had been originally commenced in the appellate court, and Circuit Court Rule No. 23, § 2, providing that any affirmative defense such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, statute of frauds, illegality, that an instrument is either void or voidable, want of consideration and any defense which by other affirmative matter seeks to avoid the legal effect or defeat plaintiff’s action as stated in the declaration, and any ground which, if not raised by the pleadings, would be likely to take the other party by surprise, must be set forth in notice added to defendant’s plea, the defense of illegality of contract and want of consideration cannot be proved under simply a plea of the general issue in a case in the circuit court appealed from the justice’s court.
    3. Brokers — Commissions — Terms oe Contract — Evidence — Question por Jury.
    Where the evidence was conflicting as to whether or not by the terms of the contract plaintiff had agreed to assist defendant broker in the sale of another saloon, and plaintiff had failed to do so, and that in that regard the contract for commissions differed from that testified to by plaintiff, the court erred in directing a verdict for plaintiff.
    Error to Wayne; Van Zile, J.
    Submitted June 21, 1917.
    (Docket No. 107.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by Henry Dattner against Andrew Weisz for moneys had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.
    
      Cornelius & Ring, for appellant.
    
      Harry J. Lippman, for appellee.
   Stone, J.

This case originated in justice’s court in the city of Detroit, where the defendant did not appear, and where a judgment was entered for the plaintiff on June 30, 1916. An appeal was taken by the defendant to the circuit court for the county of Wayne, and the justice made return of said appeal on July 1, 1916. The case appears to have been placed on the appeal docket for trial, and came on for trial on November 17,1916, upon notice by the plaintiff. After a jury was impaneled, counsel for defendant called the court’s attention to the fact that there was no issue in the case, and asked the permission of the court to file a plea of the general issue. Counsel for plaintiff consented to the filing of such plea, but defendant’s counsel immediately thereafter asked leave to file a plea of the general issue with notice of failure of consideration, and illegality of contract. This was objected to by plaintiff’s counsel, he claiming that plaintiff should have some notice, and called attention to the fact that the appeal had been taken by the defendant, after judgment by default. After a colloquy between the court and counsel, it was finally ruled that the plea of the general issue only would be permitted to be filed. This ruling was excepted to by defendant’s counsel, and no adjournment or postponement of the trial was asked for by either party, and the trial proceeded.

The declaration was on the common counts in assumpsit, and there was a bill of particulars by the plaintiif for moneys had and received, $250 and interest. The plaintiff gave evidence tending to show that he had assisted the defendant in making a sale of a saloon, stock, fixtures, and business in the city of Detroit, and that they were to divide the commission of $500 equally, and that the defendant had received the commission of $500, but refused to divide the same with the plaintiff, although defendant had given the plaintiff his check for $250, but that payment by the bank had been refused for lack of funds. The defendant sought to show that the sale included the sale of a liquor license, and that the contract was illegal and void, and hence that there was no valid consideration for the promise, if made. The court excluded such proposed evidence, ruling that the same could not be received under the plea of the general issue, to which ruling defendant’s counsel excepted. Similar offers and rulings were repeated upon the trial. The defendant further claimed that the plaintiff, as a part of the contract was to assist him in the sale of another saloon, which the plaintiff had failed to do, and claims ing that the contract differed from the one testified to by the plaintiff in that regard. Such evidence was received upon the trial.

At the close of the plaintiff’s evidence defendant’s counsel moved the court for a directed verdict, upon the ground that it conclusively appeared by plaintiff’s own testimony that the subject-matter of the sale consisted of a saloon and of a license, and that it was an illegal sale, against public policy, and that the plaintiff could not recover. This motion was denied, whereupon defendant’s counsel said that the only testimony he desired to offer was along that line, whereupon the court directed a verdict and judgment to be entered for the plaintiff.

The defendant has brought the case here upon writ of error, and the first assignment of error is that the court erred in refusing to allow defendant to enter a plea of the general issue with notice of failure of consideration and illegality of contract. There are a number of assignments of error relating to the introduction of evidence, which we do not think contain any merit. The 12th assignment of error is to the effect that the court erred in refusing to permit defendant to introduce evidence to show the illegality of the contract. The 13th assignment of error is that the court erred in refusing to direct a verdict for the defendant at the conclusion of the plaintiff’s case, upon the ground that the agreement entered into was illegal. The 14th assignment of error is to the effect that the court erred in refusing to submit to the jury the question of fact raised by the evidence.

It is the claim of the defendant that the court erred in refusing to allow him to file a plea of the general issue, with notice of failure of consideration and illegality of contract. We think that this matter was addressed to the sound legal discretion of the trial court, and we cannot say that that discretion was abused. Nearly four months had elapsed from the time the appeal was made before the plaintiff filed the proecipe or notice for the trial of the case in the circuit court, and nearly five months elapsed from the time the appeal was taken to the time of the trial of the case. During that time it does not appear that the defendant took any steps to put himself in condition for the trial of the case by the forming of an issue. The court, under the circumstances, and then only by consent of plaintiff’s counsel, permitted defendant to file a plea of the general issue. Courts are usually loath to permit amendments at the trial that will make a continuance necessary, or injure the opposite party if compelled to proceed to trial at once. We find no error in the ruling of the court upon this subject.

It is apparent that the evidence offered by the defendant, tending to show illegality of contract and want of consideration, could not have been received under the plea of the general issue, and the court was correct in ruling out such testimony, and in refusing to direct a verdict for the defendant upon that ground. Section 17 of chapter 78 of the judicature act (3 Comp. Laws 1915, § 14417), provides that, on filing the return of the justice, the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, and subject to the same rules and regulations. Section 2 of Circuit Court Rule No. 23 provides as follows:

“An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, statute of frauds, illegality, that an instrument or transaction is either void or voidable in point of law, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the plaintiff’s declaration, and any ground which, if not raised on the pleadings, would be likely to take the opposite party by surprise, must be plainly set forth in a notice added to the defendant’s plea.”

Clearly, the defense of illegality of contract and want of consideration could not be made under a plea of the general issue. There was no error, therefore, in the ruling of the court in this regard.

The 14th assignment of error is to the .effect that the court erred in refusing to submit to the jury the question of fact raised by the evidence. An examination of the record discloses that there was a disputed question of fact as to whether or not by the terms of the contract the plaintiff had agreed to assist the defendant in the sale of another saloon, which the plaintiff had failed to do, and that in that regard the contract made differed from the one testified to by the plaintiff. Such evidence was received upon the trial. We are constrained to hold, therefore, that the court erred in directing a verdict for the plaintiff, and in not submitting that question to the jury under proper instructions.

For this error the judgment of the circuit court is reversed, and a new trial granted, with costs to the appellant.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.  