Isenburger v. Hotel Reynolds Co.

177 Mass. 455 | Mass. | 1901

Knowlton, J.

Each of these actions is brought to recover $5,000 and interest, the amount of a promissory note held by the plaintiff against the defendants. The defendants in each action have been permitted to amend their answer by setting up a new and independent defence in recoupment. The plaintiff, therefore, might properly file a demurrer to the amendment, notwithstanding that the time for filing a demurrer to the original answer had expired. Pub. Sts. c. 167, § 24.

The question now before us is on the demurrer in each case. It is fairly to be inferred from each demurrer that the $5,000 was lent by the plaintiff to the Hotel Reynolds Company as the consideration of the first of its notes. The second note was given as collateral security for the payment of the first. Perhaps this inference is immaterial, for the amendments to the answers allege in substance that it was a part of the consideration of -the note that the plaintiff should sell liquors to the maker of the note at the lowest market price, and that the plaintiff broke his agreement by charging prices which were above the market price and excessive. The defendants seek to recoup damages for the breach of this alleged executory contract. That such a recoupment cannot be allowed in a case of this kind, has repeatedly been decided in this Commonwealth. Waterhouse v. Kendall, 11 Cush. 128. Traver v. Stevens, 11 Cush. 167. Stanton v. Maynard, 7 Allen, 335. Knitted Mattress Co. v. Griggs, 154 Mass. 5. Although the making of such an executory contract, which is said to have been broken, was a part of the same transaction as the making of the first note, its only connection with the note was as a part of the consideration of it. If we assume that there was a sufficient consideration for the agreement to make it enforceable as a contract, the agreement was so far independent of the note that either contract Could be enforced without a previous or contemporaneous performance of the other.

The defendants contend that there are equitable considerations in these cases which should take them out of the rules of the common law. .The answer to this contention is, in the first place, that the answers in the cases do not purport to set up an equitable defence under the St. 1883, c. 223, § 14, but each purports to be an ordinary answer at law. Worthington v. Waring, 157 Mass. 421. Secondly, the only ground which is suggested for equitable relief is that the plaintiff is a non-resident; but in most courts, although not in all, this is not deemed a sufficient ground for allowing an equitable set-off. Spaulding v. Backus, 122 Mass. 553. Murray v. Toland, 3 Johns. Ch. 569. Beall v. Brown, 7 Md. 393. Smith v. Washington Gaslight Co. 31 Md. 12. Birdsall v. Fischer, 17 Minn. 100.

Exceptions overruled.