121 Iowa 244 | Iowa | 1903
In the year 1K99 the defendant, having a contract for tbe erection of an electric light and power plant at Mauston, Wis., ordered certain materials and
It is urged, however, that the case before us does not come within the rule of the authorities cited. The point made is that defendant’s counterclaim is in the nature of an affirmative cause of action, which had not fully developed when the payment was made, and cannot be pre-
This conclusion is rendered still clearer when we consider the nature of the damages asserted by the defendant. Its right to such damages rests upon the right of .recoupment as distinguished from “set-off,’* in the technical sense of that term, and from a statutory counterclaim based upon an independent cause of action. That the right to damages for delay in delivery of property sold is a right to recoup the same from the contract price, see Schweickhart v. Stuewe, 71 Wis. 1 (36 N. W. Rep. 605, 5 Am. St. Rep. 190). Recoupment is, as the word implies, the cutting out or reduction of a part of a creditor’s -demand, and is based upon some failure of the creditor to comply with the terms of the contract out of which the debt sued upon arises. See “Recoup,” Anderson’s Law Diet. It goes directly to the amount due the plaintiff. The defendant, asserting such right, does not admit his
In Lufburrow v. Henderson, 30 Ga. 482, recoupment of damages in such cases in spoken of as being an “improvement upon the old doctrine of failure of consideration. It looks through the whole contract, treating it as an entirety, and treating the things done and stipulated to be done on each side as the consideration for the things done • and stipulated to be done on the other. When either party seeks redress for the breach of stipulations in his favor, it sums.up the grievances on each side instead of the plaintiff’s side only, strikes a balance, and gives the difference to the plaintiff, if it is in his favor.” When the plaintiff herein demanded payment of the first bill, its right to receive or enforce collection of the full amount depended upon its ability to prove performance of the contract on its part. If it had not so performed, it had not furnished the consideration upon which defendant had promised to pay, and was entitled to demand and receive, not the fall contract price, but the contract price reduced by the damages which its default had occasioned to the defendant. Its insistence upon the full contract price was, upon defendant’s th'eory at least, unjust and excessive. Defendant was fully aware of the injustice, and for a time refused payment, but in the end did pay and satisfy the demand upon plaintiff’s terms. As said by us in Baldwin v. Foss, supra, the party who would resist an
II. On plaintiff’s motion the trial court struck from defendant’s answer the allegation that at the time of paying the contract price upon the first order for machinery and materials defendant “did not know how much, if anyr damages the Mauston Electric Light & Power Company might claim or be able to establish against the defendant,’7 etc. From this order defendant has appealed, but we think it unnecessary for us to consider the question thus raised. In disposing of the principal appeal we have treated the answer as containing the allegation ordered stricken out, and if there was any error in the ruling it was without prejudice.
The judgment of the district court is reversed, and cause remanded for further proceedings in harmony with, this opinion. —ReveRSed.