33 W. Va. 470 | W. Va. | 1890
The Clark’s Cove Guano Company brought an action before a justice of Greenbrier county against R. 0. Appling, upon a promissory note dated August 26, 1887, given by Appling to said plaintiff'for $172.25 payable October 1,1887. The defendant pleaded payment, and filed an account of set-off for $345.00. The justice rendered a judgment against the plaintiff for defendant’s costs; and upon appeal to the Circuit Court there was a verdict by a jury finding for plaintiff' $172.25 as of October 1, 1887, subject to a set-off of $172.25 in favor of defendant as of same date, and the Circuit Court overruling a-motion of the plaintiff for a new trial, rendered judgment that the defendant recover of the plaintiff' and its surety jn appeal-bond his costs in both courts. The plaintiff sued out this writ of error.
The debt of the plaintiff is established by the note. The •only question in the case is whether the defendant is entitled to the set-off' which he claims. His demand under this head is to be determined on the following facts: He -had been
We are of the opinion that the claim of the defendant can not be allowed as a set-off’, because it is unliquidated. His claim is that he was damnified by the failure of the company to furnish him the fertilizers to be by him sold, and thus
The defendant’s claim can not be sustained under the law of recoupment, because his demand for damages for the company’s failure to perform the contract grows out of the contract of agency for the season of 1887-88, whereas the plaintiff’s demand rests on the note, and that was given under a prior agency for a former season, the terras of which we know nothing of, and closed that matter entirely. The two transactions are separate and distinct, and therefore the principle of recoupment, does not app’y. The right to recoupment must grow out of the same transaction on which the plaintiff’s claim is founded. Wat. Set-Off, §§ 475, 476; Logie v. Black, 24 W. Va. 1.
The judgment of the Circuit Court is reversed with costs to appellant, the verdict of the jury is set aside, and a new trial awarded; and the cause is remanded to the said Circuit Court for such trial.
ReveRsed. Remanded.