213 Mass. 218 | Mass. | 1913
The defendant’s exceptions relate to the exclusion of evidence, and the first exception not having been argued it must be treated as waived, leaving for decision the question
During the trial the defendant was permitted to plead in recoupment, which goes only to the reduction of damages and raises a defense not available under the original answer of a general denial. Sawyer v. Wiswell, 9 Allen, 39, 42. Stacy v. Kemp, 97 Mass. 166, 168. Hodgkins v. Moulton, 100 Mass. 309. Carey v. Guillow, 105 Mass. 18. Jackman v. Doland, 116 Mass. 550. The defendant, however, if it had prevailed, could not have had damages assessed caused by the plaintiff’s breach, but would have been obliged to resort to an independent action. Proprietors of Mill Dam Foundery v. Hovey, 21 Pick. 417, 438, 439. Munsey v. Butterfield, 133 Mass. 492. Jewett v. Brooks, 134 Mass. 505. Paige v. Barrett, 151 Mass. 67, 68. Snow v. Alley, 156 Mass. 193. Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134.
But the plaintiff was required to show substantial performance on his part before he could recover, and, if the jury found that his displacement was justified, the defendant would have been entitled to a verdict. Under the general denial proof of the amount of damages suffered by his general mismanagement would have been relevant as tending to support the defendant’s contention that he had been deposed because of incompetency. The plaintiff objected to a question which would have elicited from the defendant’s treasurer evidence of this character, on the ground that recoupment had not been pleaded, and the judge excluded the question. It was wholly immaterial whether recoupment had then been pleaded, as the colloquy between the judge and the defendant’s counsel, preceding the ruling, removes all doubt that the evidence was offered to show a breach of the
Exceptions sustained.
