43 W. Va. 502 | W. Va. | 1897
This is an action of assumpsit, brought by Dillon Beebe’s Son in the Circuit Court of Braxton County, against J. E. Eakle, founded upon the following paper writing : “Eakle & Coffindaffer v. Dillon Beebe's Son. In assumpsit in the Circuit Court of Braxton county. Received 23rd March, 1894, of Dillon Beebe’s Son nine hundred and twenty-two dollars and seventy-one cents ($922.71), in settlement in full of all balance on account of sawing, work, and account of every kind and character growing out of the contract between said Dillon Beebe’s Son and said Eakle & Coflin-daffer, dated 8th October, 1892, and all matters involved in above-styled action, and said action to be dismissed without costs agreed. And whereas the firm of Jack & Carper 1ms set up cetain claims to a part of the fund or account to be paid by said Dillon Beebe’s Son on account, of the work mentioned in said contract, by suggestion before G. S. Berry, justice; and W. H. Lee claims aright, to a certain part of said amount, on account of an order from said Ooflindaffer to said Dillon Beebe’s Son; and one J. B. Fowler has an action pending in said court against. Dillon Beebe’s Son, in which he claims certain amounts on account- of certain orders of said Ooifindafi'er on said Dillon Beebe’s Son, on account of said fund from said contract, and this'amount so received leaving nothing on account of said contract or otherwise in said Dillon Beebe’s Son’s hands- out of which- to pay any part or either of said claims : It is hereby agreed that- said Dillon Beebe’s Son shall not in any manner be held liable therefor, and the undersigned hereby indemnify said Dillon Beebe’s Son against each and all-of said claims to the extent of said nine hundred and twenty-two dollars and seventy-one cents, in so far as they depend upon the orders of said Geo. W. Ooflin-daffer and the effect thereof upon the said fund. [Signed] J. E. Eakle, for the late, firm of Eakle & Ooflindaffer.” The declaration avers that by reason of judgments of Justice G. S. Berry in-favor of W. H. Lee, for eighty-seven dollars and seven cents, and in favor of Jack & Carper, for
Plea No. 4 tendered by defendant is a. follows :
“And the said defendant, for further plea in this behalf, says that, before the execution of the writing set forth in the plaintiff’s declaration, a contract had been entered into between this defendant and one George W. Ooffindaffer, in the words and figures following, to wit: ‘This contract, made this 18th day of February, .1898, between John E. Eakle, of the 'first part, and G. W. Ooffindaffer, of the second part, both ol: the county of Braxton and State of West Virginia, witnessed): That on the 24th of August, 1892, by a written contract, of that date between the parties hereto, said Eakle sold said Ooffindaffer, on the terms mentioned therein, oue-lialf interest in a certain sawmill, and said Ooffindaffer agrees to pay him therefor $600, to be paid as follows: kSaid Ooffindaffer was to settle with said Eakle every 80 days, and pay him 50 cents for every thousand feet, of lumber sawed, tobe applied.as a credit on said debt. This writing further witnesseth that said Eakle has rented to the said Ooffindaffer the other half interest, in said mill for the term of one year, and the said Ooffindaffer agrees to pay, as rent therefor,-sixty-two and one-half cents on every one thousand feet sawed, and agrees to pay the 50 cents above mentioned also on every thousand feet of lumber sawed, to lie paid as follows: Said parties are to make settlement- every 80 days, and said Ooffindaffer agrees-to leave, in the hands of the party for whom lie saws, the above amounts, 75 cents on the thous- and of which is to be paid at the end of every thirty days, 37i cents on the thousand, the residue, to be paid when
“And the defendant avers that the plaintiff, to-wit, on the 13th day of February, 1893, had notice of the contract of that, date between this defendant and said Ooffiudaffer, hereinbefore set out; and that the plaintiff, to-wit, on the 18th day of February, 1893, had notice of the order of that date drawn on him by said George ,W. Ooffiudaffer, and hereinbefore set out, and agreed and promised to pay, reserve, and pay to this defendant the amounts therein mentioned. And the defendant avers that afterwards, to-wit, on the-day of November, 1893, and in pursuance of the order of the 18th of February, 1893, aforesaid, the said George W. Ooffiudaffer drew an order upon the plaintiff, directing him to pay this defendant the sum of $578.71, which amount represented the ‘certain other amounts’ in the order of February 18, 1.893, aforesaid, to be reserved by the plaintiff', and paid to this defendant, of which last-mentioned order the plaintiff, to-wit, on the- clay of November, 1893, had notice, and the plaintiff then and
“And the defendant avers that, in truth and in fact, as the plaintiff well knew, a judgment liad been rendered by the said G. S. Berry, justice, in the proceedings aforesaid, in favor of Jack & Oarper, against the plaintiff, and that the plaintiff had, as lie then well knew, accepted the orders in favor of the said Fowler and the said Lee, and each of them respectively, and had in fact, as lie well knew, become liable by original undertakings and promises, and by acts and conduct then unknown to this defendant, and by the plaintiff fraudulently concealed from this defendant,' to pay the several sums so claimed by Jack & Oarper, Fowler, and Lee, respectively. And this defendant, avers that the said G. W. Coffindaffer had no authority to draw the orders upon the plaintiff referred to in the writing signed by this defendant and in the declaration set out, upon which the respective claims of Jack & Oarper, Fowler, and Lee were founded; and that this defendant relied upon the false and fraudulent representations so made as aforesaid by the said plaintiff, and did not know that the same or any of them were false, as in fact they were; and by means of said false and fraudulent representations this defendant was induced, and did, execute and deliver a writing of 28d March, .1894, set out in the declaration, to the plaintiff; and, but for said false and fraudulent representations, this defendant avers that he would not have so executed and so delivered the said writing. And the defendant avers that, by reason of the said false and fraudulent representations so made as aforesaid by the said plaintiff, the consideration for the execution of the said writing and the compromise of the suit therein mentioned has wholly failed, and the defendant has sustained damages amounting to a large sum, to-wit, $1,598.15, and here offers to set off so much thereof as is sufficient, to meet the demands of the plaintiff, and for the residue asks judgment against the said plaintiff'. And this he is ready to veri fy. James B. Fowler, Linn & Byrne, Dulin & Hall, B. D.
“State of West Virginia, Braxton County, to-wit: J. E. Eakle, the defendant named in the foregoing plea, being first, duly sworn, upon his oath says that the facts and alie-
“Taken, subscribed, and sworn to before me, this the 18th day of December, ,1894. 0. T. Byrne, Notary.”
Pleas Nos. .1 and 2 are of about the .same import, while No. 8 only goes to the claim of Jack <k Carper.
‘“Said special pleas, so far as they contain defense to the action, in effect only amount to the general issue. And the matters sought to be set up in the said pleas as defense, so far as they are good, if sufficiently pleaded, could be given in evidence on the plea of non-assumpsit. It is not error to reject a special plea setting up matters in defense to the action, when the plea of non-assumpsit is filed, and the matter of defense of such plea may be given in evidence under the plea of non-assumpsit.” Hale v. Land Co., 11 W. Va. 229, 236; Railroad Co. v. Laffertys, 14 Grat. 478; Railroad Co. v. Polly, Id. 454. “When fraud is intended to be set up as a defense, it may be given in evidence under the general issue in assumpsit.” 2 Saund. PI. & Ev. top page 25, side page 527. Recoupment is said to be “that right of the defendant in the same action to claim damages from the plaintiff, either because he has not complied with some cross obligation of the contract upon which he sues, or because he has violated some duty which the law imposes upon him in the making or performance of that contract.” McAllister v. Reab, 4 Wend. 483; Id., 8 Wend. 109; Allaire Works v. Guion, 10 Barb. 55, and other cases cited. “In England, as well as in some of the United States, the principles of recoupment, as defined by us, have been recognized only- in a restricted form. Under the name of reduction of damages, the defendant is allowed to show all such violations of his contract by the plaintiff as go to render the consideration less valuable; but he is compelled to resort to an independent action for any immediate or consequential damages affecting him in other respects. ” “The damages recouped must be for a breach.of the same contract upon which suit is brought.” Batterman v. Pierce, 3 Hill (N. Y.) 171; Spalding v. Vandercook, 2 Wend. 431; Deming v. Kemp, 4 Sandf. 147; Miles v. Elkin, 10 Ind. 329. And in The Wellsville v. Geisse, 3 Ohio St. 333: “Recoupment, however, even as
The defense attempted to he set up in this cause goes to the whole action, and alleges the procurement of the contract by fraud and deceit, which, if well proven, defeats the action. A recoupment of damages therefore is not applicable, so that the court did not err in refusing to tile the said four special pleas and set-offs, but properly tiled the set-offs as to the alleged mistake. The defense in this case not being based on a violation of a contract, but upon the procurement of the contract by fraud and misrepresentations, the settlement should not be opened except to correct, mistake.
The third assignment is that “the court, erred in limiting the evidence, introduced by the petitioner as shown by the bill of exceptions No. 8.” The court did not err in so limiting the effect of said evidence so introduced as to show a mistake in the settlement, as alleged in the notice of set-off's, and so far as they tend to prove that J. E. Eakle was entitled to amount due from Billon Beebe’s Hon to Eakle & Ooffindaffer.
The second assignment is that “the court erred in rejecting the evidence offered by the petitioner, as shown by bill of exceptions No. 4.” The bill of exceptions No. 4 shows that on the trial defendant offered to prove the several matters of defense set up in the special pleas, to the introduction of all of which testimony plaintiff' objected, and the court sustained the objection, and refused to admit in evidence the several matters of defense aforesaid. The court erred in rejecting any evidence offered by the appellant, as shown in said bill of exceptions No. 4, in so far as such evidence might tend to prove the procurement of the contract sued upon in this case by the plaintiff by false and fraudulent representations, as such evidence was admissible under the general issue. It follows, therefore, that the fourth assignment is well taken, that the court should have set aside the verdict of the jury, and granted a new trial. For the reasons stated, the judgment, complained of is reversed, and the case remanded for a new trial to be had therein.
Reversed.