Lawton v. Ricketts

104 Ala. 430 | Ala. | 1893

HARALSON, J. —

1. The first plea of recoupment filed by the defendants is fatally defective as such. If the defendants were suing on the claim of $2,000 here offered to be recouped, it could not be pretended that the averments in this plea would make it a good complaint. — 3 Brick. Dig. 741, § 52.

2. It is sometimes difficult to discriminate set-off from recoupment. They are each, in a sense, set-offs. A set-off is a counter demand, growing out of an independent transaction, whether liquidated or unliquidated, not sounding in damages merely, subsisting between the parties at the commencement of the suit. — Code, § 2678; 22 Am. & Eng. Encyc. of Law, 211. Recoupment is defined as the right of the defendant, in the same action, to claim damages from the plaintiff, either because he has not complied with some obligation of the contract upon which he sues, or because he has violated some duty which the law imposes on him in the making or performance of the contract. — 22 Amer. & Eng. Encyc. of Law, 340; Merrill v. Everett, 38 Conn. 40, 48. “The defense is founded on natural equity, that mutual demands, growing out of the same transaction, should compensate each other, by deducting the less from the greater, and treating the difference as the only sum pistly due.” The claim must be a valid cause of action; and, except as authorized by statute, it is available only as a defense, and the defendant can not recover the balance. — Sutherland on Damages, §§' 265, 273, 293. It is in substance and effect a set-off in cases where it may .be pleaded, to the extent of plaintiff’s demand. In this State, by section 2683 of the Code, if the claim recouped equals that of the plaintiff, judgment must be rendered for the defendant; if it exceeds the plaintiff’s demand, judgment must be rendered against him and in favor of defendant, as in case of set-off, for the excess.'

3. The second plea, as would appear, and as we are authorized, by the statements of counsel, to assume, .was intended to remedy the vice of the first to which a demurrer had been sustained; and a demurrer haying been sustained to it, the third was filed to remedy the alleged defects of the second. Two of the grounds of demurrer to the second plea, speak of it as an"‘off-set, ” and for that reason, the defendants suggest they can not be considered, as his plea is not one of set-off, but of recoupment; but that objection is too technical, and is without merit. This plea, like the first, is subject to the objection that it is too vague and uncertain in the statement of facts, by which it would be made to appear, that defendant suffered the damage claimed in consequence of the alleged misrepresentation. It is also subject to the further infirmity, that it does not appear that the damages claimed are the natural and proximate consequence of the breach of said contract complained of, but, if any, that they are remote or speculative. — 3 Brick. Dig. 293, §§ 8, 9 ; Brigham & Co. v. Carlisle, 78 Ala. 247; Sutherland on Damages, 55, 56.

4. The third plea, counting on defendant’s cross-demand, is a little fuller than the second. The pleader seemed to realize the difficulty of making an available claim of damages, and from first to last, evinced an indisposition to make a full statement of the facts to show how the defendant’s alleged damages accrued, and, each time, stopped short of averring facts, and rested upon averments of mere conclusions. Now, in this plea, after a statement of the inducements, he makes three separate claims of damages as the consequence of the breach of said contract, in each instance, averring no facts out of which the alleged damages arose, but stating the demand as a matter of conclusion. The quo modo of damage in neither case is averred.

This plea was scarcely more satisfactory than the second, and is subject to the same vices. It is vague and uncertain, and lays claim to no damages which are the natural and proximate consequence, of the alleged breach of said contract.

Affirmed.