Marden-Wild Corp. v. Damon

271 Mass. 401 | Mass. | 1930

Crosby, J.

This is an action to recover an alleged balance of account. The defendant’s answer is a general denial, payment, accord and satisfaction and recoupment. The defendant contends that he has a counter claim against the plaintiff arising out of a breach of warranty of a previous contract with it. Besides the answer in recoupment, the defendant brought an action of contract against the plaintiff to recover upon the alleged breach of contract. Both actions were tried together. The court found for the plaintiff in the present action and for the defendant in the cross action.

There was evidence that both parties were dealers in tanners’ oils. On May 24, 1926, the defendant purchased from the plaintiff one hundred fifty barrels of Cod Moellon Oil and paid for the same. The oil was to be of the same quality as that previously purchased by the defendant from the plaintiff. There was evidence that the oil was not of that quality; that most of it was sold to customers who were dissatisfied with its "quality and returned it to the defendant. Thereafter the defendant claimed that he should be reimbursed by the plaintiff for the oil so sold by him, and for the freight charges incurred in shipping the oil from his customers back to the plaintiff. The plaintiff disputed the defendant’s claim that the oil was of inferior quality. There was but one conversation between the parties respecting the quality of the oil and the trial judge found that the question of freight charges never was discussed orally between the defendant and any of the plaintiff’s officers or representatives; that there was considerable correspondence between the parties relative to the quality of the oil; that an arrangement was arrived at in accordance with which the plaintiff replaced one hundred thirteen barrels of oil with other oil which proved satisfactory. The trial judge further found that thereafter no claim was made by the defendant for any freight charges. On December 9,1926, the defendant bought from the plaintiff seventy-five barrels of Cod Moellon Oil. On December 20 the defendant paid the amount due for this purchase less $447.57, which is the amount the defendant claims due him on account of freight charges above referred to. The trial judge found and ruled that the correspondence between the parties together with their subsequent conduct constituted an accord and satisfaction and that there was due the plaintiff the sum of $447.37.

The question whether there was an accord and satisfaction was one of fact. Alden v. Thurber, 149 Mass. 271. Worcester Color Co. v. Harry Wood’s Sons Co. 209 Mass. 105, 110. Upon the evidence, all of which is reported so far as material, and the reasonable inferences to be drawn therefrom, the finding that there was an accord and satisfaction was not unwarranted. The defendant’s requests three to eight, both inclusive, could not properly have been given in view of the facts found.

It is plain that the defendant was not entitled to prevail upon his answer in recoupment. It is indispensable to the allowance of the remedy of recoupment that the damages sought to be recouped should grow out of the same contract or transaction as that on which the plaintiff relies to maintain his action. The damages which the defendant seeks to recoup in the present action arise from an entirely independent transaction from that upon which the plaintiff’s cause of action is founded. It is manifest that in these circumstances the doctrine of recoupment is not applicable. Sawyer v. Wiswell, 9 Allen, 39, 42. Knitted Mattress Co. v. Griggs, 154 Mass. 5. Isenburger v. Hotel Reynolds Co. 177 Mass. 455. Barlow Manuf. Co. v. Stone, 200 Mass. 158. Western Newspaper Union v. Dittemore, 264 Mass. 74, 78.

Order dismissing report affirmed.