36 P. 918 | Ariz. | 1894
Ordinarily, this court would be justified in affirming the judgment in this case upon the ground that appellant has failed to comply with the decisions and rules of this court in reference to assignments'of error. The assignments are too general, and are insufficient, in that they fail to designate and specifically point out any error in the record for our consideration. Marks v. Newmark, 3 Ariz. 224, 28
The facts of the case are these: On May 21, 1887, the appellant, William Christy, who resides in the city of Phoenix, and the appellee, Delos Arnold, who resides in Pasadena, in the state of California, entered into a written agreement, of which the following is a copy:—
“This agreement between Wm. Christy of Phoenix, Arizona, and Delos Arnold of Pasadena, Calif., is as follows: Wm. Christy promises to pay all expenses, and patent Sec. 13, T. 2, N. R. 1 E. Gila and Salt River M. (said Sec. 13 being located about ten miles north from "Phoenix, Arizona, in a N. W. direction), and deed the same to said Arnold for fourteen thousand dollars. On or before ninety days from this date, said Arnold promises to pay said Christy twenty-five hundred dollars as part payment on this contract. And if said Christy fails to get final papers and deed said lands to said Arnold, then said Christy is to return said Arnold the above-mentioned twenty-five hundred dollars. And it is further agreed that when the title to said Sec. 13 is acquired, and conveyed to said Arnold, then the said Arnold shall pay to the 'Said Christy the final sum of eleven thousand five hundred dollars, and said Arnold is to be at no expense in procuring above title. May 21, ’89. Wm. Christy. Delos Arnold.
“Eight water-rights in the Arizona Canal.to go with the above-described land, and are to be deeded to the land and become a part of the same. Wm. Christy.”
It appears that the title to the land described in the contract was not, at the time of its execution, in Christy, but the same was desert land, held under the Desert Land Act, in the names of certain third persons. It appears, also, that, pursuant to the agreement, appellee. Arnold, in August, 1887, paid to appellant, Christy, twenty-five hundred dollars. The letters of the parties afford the evidence of their subsequent conduct relative to the contract. The substance of this correspondence only is important. On October 22, 1887, Christy wrote to Arnold that he would be ready to convey title to the
Assuming that Arnold was in default, unquestionably Christy had the right to be made, whole for any damage sustained from such default. Without, however, some pleading on the part of the defendant alleging such damage, he could not be allowed any as a set-off in the suit to recover back the money paid under the contract, lie could have recouped such damage, if any there was. The a iswer of the defendant averring that the receipt of the twenty-five hundred dollars had profited him nothing was not suet' a pleading as entitled him to prove and be allowed such damage as a set-off to plaintiff’s demand. Paragraph 736 .of the Revised Statutes provides that “whenever any suit shall be brought for the recovery of any debt due by judgment, bond, bill, or otherwise, the defendant shall be permitted to pie,id therein any counterclaim which he may have against the plaintiff, subject to such limitation as may be prescribed by law.” Paragraph 737 provides that “the plea setting up such counterclaim shall distinctly state the nature and several items thereof and shall conform to the ordinary rules of pleading.” Paragraph 742 provides that “in every action in. which the defendant shall desire to prove any payment and counterclaim or set-off, he shall file with his plea an account stating distinctly the nature of such payment and counterclaim or set-off and the several items thereof; and on failure to do so he shall not be entitled to prove the same, unless it be ;o plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.” If the reading of the above paragraphs does not make it clear that the term “counterclaim” embraces recoupment, Bliss (Code Pleading, sec. 370) is decisive on that point. The defendant should under the statute have set up his counterclaim based on sue! damage, and stated therein distinctly the nature of the damage sustained, so that the
Hawkins, J., concurs.
ROUSE, J.—I do not concur in the opinion in this case.