
    Gilbert A. Powell v. James H. Powell.
    
      Set-off — Discharge from guan'diamhifp.
    
    1. A claim for personalty received by plaintiff while acting as defendant’s guardian, but not accounted for by him, is proper set-off in an action on a note, being for goods sold or for money had and received. How. St. § 7865.
    2. A claim for money had and received cannot be classed as unliquidated damages, as the amount of such a claim is always ascertainable.
    8. A receipt by a ward for property held by his guardian is no more conclusive than any other receipt, and while it justifies the guardian’s discharge neither the receipt nor the discharge precludes the ward from showing that under a mutual arrangement the guardian has not actually accounted for part of the property.
    4. Undue haste in the settlement of a guardian’s accounts is not favored.
    Error to Macomb. (Stevens, J.)
    Jan. 11.
    Jan. 22.
    Assumpsit. Defendant brings error.
    Eeversed.
    
      Edgar Weeks for appellant.
    Tlie right of set-off is statutory (Woods v. Ayres 39 Mich. 345) and includes everything that can be the subject of suit (Wallace v. Finnegan 14 Mich. 170; Hosmer v. Wilson 7 Mich. 294; Ward v. Warner 8 Mich. 508; Watson v. Stever 25 Mich. 386) even a distinct debt: Waterman on Set-off §§ 89, 286; Smith v. Huie 14 Ala. 201; Gunn v. Todd 21 Mo. 303; Leavenworth v. Packer 52 Barb. 132; Ogden v. Coddington 2 E. D. Smith 317.
    
      Dwight N. Lowell for appellee.
    Assumpsit cannot lie at the suit of a ward against the guardian for matters involved in the trust: Moore v. Hazelton 9 Allen 104; Brooks v. Brooks 11 Cush. 20; Conant v. Kendall 21 Pick. 36; Cole v. Eaton 8 Cush. 587; Wade v. Lobdell 4 Cush. 510; Hicks v. Chapman 10 Allen 464; Schouler’s Dom. Rel. 506-514; Gott v. Culp 45 Mich. 274; unliquidated demands are not properly within the law of set-off: Hol
      
      land v. Rea 48 Mich. 218-225; Carter v. Jaseph id. 615; Waterman on Set-off §§ 301-4; an unsettled account constitutes a claim not only unliquidated but wholly uncertain; Cumings v. Morris 3 Bosw. 560; Sherman v. Ballou 8 Cow. 304; Osborn v. Etheridge 13 Wend. 339; Butts v. Collins 13 Wend. 139; Stanbery v. Smythe 13 Ohio St. 495; Ratliff v. Davis 38 Miss. 107; Hanna v. Pleasants 2 Dana 269; a final account between guardian and ward, a full hearing in the probate court and a determination of the guardian’s accounts bind all concerned: Le Guen v. Gouverneur 1 Johns. Cas. 501; Adams v. Cameron 40 Mich, 511; Embury v. Conner 3 N. Y. 522; Kamp v. Kamp 59 N. Y. 215; Ross v. Wood 70 N. Y. 11; Webb v. Buckelew 82 N. Y. 558; Jacobson v. Miller 41 Mich. 93; Baxter v. Aubrey id. 13.
   Campbell, J.

Plaintiff recovered judgment against defendant for a balance due on a promissory note. Defendant offered but was not allowed to prove a set-off arising from the conversion of certain personal property which plaintiff, as guardian of defendant, had received and not accounted for. This property consisted of grain, hay and some animals belonging to defendant. This set-off was rejected below chiefly on the ground that the guardianship accounts had been settled and the guardian discharged. It is now claimed further that the amount was unliquidated.

This last objection amounts to nothing. The claim, if valid, might have been either for goods sold or for money had and received, either of which would come within the-statute, and neither of which is within the residuary clause-relating to unliquidated damages, because money had and received is always ascertainable, and a claim for this, as. well as for personal property sold, is expressly allowed to beset off. Comp. L. § 5796. [How. St. § 7365.]

The foundation for the other objection is in a receipt in-full, given after an account had been settled in the probate-court, on the basis of which receipt the guardian was discharged.

It appears that during a part of the year 1880, defendant was under guardianship of plaintiff, as temporarily non compos. In the fall of that year he left the asylum and plaintiff filed an account, and a day of hearing was fixed, and the parties were present before the judge of probate. It appeared from the inventory that certain personal property, including in whole or in part the property now in question, was in the guardian’s hands, but no price was put upon it. On the accounting the judge of probate says that his attention was called to the fact that this property was not included either in the inventory or in the account; that there was to be a receipt drawn, and “certain moneys or property — an amount found in his hands” should be delivered. The order discharging the guardian was made, if the dates are correctly stated by the probate judge, a few days before the receipt was filed, the order providing for such discharge when the receipt should be given. The judge does not remember whether any understanding was had in his presence concerning what was to be done with the property not inventoried, but the order showing the accounting shows affirmatively that this outside property was not brought into-the account.

There is conflicting testimony as to the real facts, but it was not allowed to go to the jury.

There is np rule which makes a receipt conclusive evidence, and if these items were not included in the probate account, we do not think the right of defendant is precluded. The judge of probate was justified by the receipt in discharging the guardian, but this did not preclude the parties from having arrangements as to matters outside of the action .of that court. The law does not favor undue haste in the settlement of guardian’s accounts, and where the information must necessarily be in the hands of the guardian, it would be inequitable to stretch matters unduly in his favor. In the present case it is certain that he did not account to the probate court for these items. It is equally certain that he did not perform his duty, until he had done so in some way. It was held in Hooper v. Hooper 26 Mich. 435, that it is competent for guardian and ward to make settlements between themselves, and if they choose to do so and to take any class of items out of the accounting they can do so. The ward, being sane, can make such an arrangement as he can make any other contract,'and if to close up the probate matters papers are formally passed, we know" of no reason why such a receipt is any more conclusive than any other receipt. We think the set-off was admissible.

The judgment must be reversed with costs and a new trial granted.

The other Justices concurred.  