8 Conn. Supp. 92 | Conn. Super. Ct. | 1940
On July 30, 1938, an automobile accident occurred at a street intersection in Winsted, which resulted in damage to both automobiles. On October 17, 1938, a complaint setting forth the claim of the plaintiff and seeking recovery in damages to property only, was executed and served. On September 27, 1939, the defendant interposed an answer setting forth a general denial and a special defense by way of counterclaim, also asking money damages only. The plaintiff demurred to this special defense, setting up the bar of the statute of limitations (Gen. Stat. [1930] § 6015 as amended by Cum. Supp. [1935] § 1680c).
There is no dispute but that a year had elapsed between the date of the accident and the interposition of the counterclaim. Whether or not the demurrer to the special defense is good in law, depends on the answer to the question whether the allegations of the special defense relate back to the institution of the action. Our statutes (Gen. Stat. [1930] § 5511) provide: "In any case in which the defendant has either in law or in equity or in both a counterclaim, or right of set-off, against the plaintiff's demand, he may have the benefit of any such set-off or counterclaim by pleading the same as such in his answer, and demanding judgment accordingly; and the same shall be pleaded and replied to according to the rules governing complaints and answers; provided no counterclaim, set-off or defense, merely equitable, shall be available in any action before a justice of the peace."
There are two recognized methods of presenting such a counterclaim as this, either by answer or cross complaint. Beachvs. Whittlesey,
It is argued by the demurrant that in the absence of an express statute, a demand of the defendant, whether pleaded by way of set-off, counterclaim or cross bill, is regarded as an affirmative action, and therefore, unlike a matter of pure defense, is subject to the operation of the statute of limitations and is unavailable if barred by such statute. This is a statement of the rule of set-off as set forth in an annotation (16 A.L.R. 326, 328) to the case of Huggins vs. Smith,
The annotator adds among his citations, a third Connecticut case, but apparently with some doubt, for he says: "See also Beecher vs. Baldwin (1887),
If I read the decision in the Beecher case aright, the court is not referring to a set-off, or counterclaim, but to the ancient common-law defense of recoupment.
The defense of recoupment exists as long as the plaintiff's cause of action exists and may be asserted though the claim as an independent cause of action is barred by limitations. This has been so held in the case of Williams vs. Neely, 134 F. 1, and in Crosset Lumber Co. vs. United States,
Beecher vs. Baldwin is cited in 24 R.C.L. 837, and the editors of this particular title, "Set-off and Counterclaim", say: *95 "In pleading the statute of limitations to a counterclaim, it must be shown that the bar of the statute had matured when the original suit was commenced, and it is not sufficient to aver a bar when the counterclaim was filed."
A counterclaim is a cause of action existing in favor of the defendant against the plaintiff. "It has also been defined as a claim which, if established, will defeat or in some way qualify a judgment to which the plaintiff is otherwise entitled. It is generally defined by the codes as a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; or, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action (italics not in original)." 24 R.C.L. Set-off and Counterclaim § 4.
In Connecticut the right of set-off, whether legal or equitable, seems to have been confined to rights arising from contract. Downing vs. Wilcox,
To "recoup" is to keep back or stop something which is due. It corresponds with the reconvention of the civil law in which the defendant is permitted to exhibit his claim against the plaintiff, provided it arose out of or was incidental to *96 the plaintiff's particular cause of action.
Bouvier in his law dictionary (Rawle's Third Revision) says: Recoupment "is the right to set off unliquidated damages, while the right of set-off .... comprehends only liquidated demands or those capable of being ascertained by calculation, (citing Parker vs. Hartt,
"This is because recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded. Such a defense is never barred by the statute of limitations so long as the main action itself is timely." Bull vs. United States,
It is an indispensable requisite to the allowance of the remedy of recoupment that the damages to be recouped should grow out of the very transaction upon which the plaintiff's claim is founded. If they arise from the breach of an independent contract or from an independent wrong, unconnected with the plaintiff's cause of action, there can be no recoupment. 24 R.C.L. Set-off and Counterclaim § 55, citingWinthrop Sav. Bank vs. Jackson,
A comprehensive description of this doctrine and its application will be found in the decision of the Supreme Court of Wisconsin in Peterson vs. Feyereisen,
"Right of defrauded party to recoup for fraud in misrepresenting acreage conveyed by vendor suing for full contract price is not barred by six-year limitation."
the court, in its opinion, quotes with approval a decision written by Judge Sanborn of the C.C.A. (8th Circuit) in the action of Williams vs. Neely, 134 F. 1, wherein Judge Sanborn quotes with approval (p. 7) from Winder vs. Caldwell,
14 How. 434, 443,
Today statutes and codes aim to prevent circuity of action and multiplicity of suits, and to present to the court in one cause those claims which, whether denominated legal or equitable, arise out of a series of events depending on each other, or having more or less a common denominator. Aside from obtaining this simplicity, one would find difficulty in differentiating between set-off and counterclaim. Recoupment — yes — for this is a civil law term and has a clearly defined meaning and is as old as our common law; but still it is used almost interchangeably with set-off and counterclaim in less carefully drafted opinions.
"If, however, a counterclaim or set-off is not barred at the commencement of the action in which it is pleaded, it does not become so afterward, during the pendency of that action." 24 R.C.L. Set-off and Counterclaim § 43.
To support this statement the editors cite Beecher vs. Baldwin,supra. And to quote again from this same section 43, it is stated: "A counterclaim must be an existing cause of action, but recoupment is a right to reduce the plaintiff's claim, and this right exists as long as the plaintiff's cause of action exists and may be asserted though barred as an independent cause of action" (citing Williams vs. Neely, supra; and againBeecher vs. Baldwin, supra; and First Nat'l Bank vs. Childs,
As a general proposition of law, in an action for damages resulting from an automobile collision, defendant may set up by way of recoupment his damages, proximately resulting from plaintiff's negligence, and recover therefor, provided he has not been guilty of contributory negligence. Alabama *98 Power Co. vs. Kendrick,
For the purpose of this decision, in the instant case, we have a counterclaim arising out of the same cause of action or transaction, and though it sounds in tort, the defendants assert they are entitled to oppose their claim for the damage they suffered, against the claim for damages that the plaintiff alleges he suffered.
Under the authorities above cited, this I hold the defendant is entitled to do upon the theory of recoupment.
The demurrer is overruled.