71 Wis. 1 | Wis. | 1888
The respondents were engaged in quarrying and dealing in building-stone. The appellant had contracted to build a county jail for Milwaukee county. The respondents agreed to deliver to the appellant, in the city of Milwaukee, “ all the building-stone needed or required by [him] in or about the erection or construction of said jail building, promptly and punctually, whenever [he] might want the same for such purpose, and without any delay on their part,” at certain agreed rates. This action is for the recovery of the balance unpaid for the delivery of said stone. The appellant answered, among other things, by way of counterclaim, “ that said plaintiffs have neglected and failed to perform said agreement on their part, in that they did not furnish and deliver such stone promptly and punctually when the same was wanted and needed by this defendant for such purpose, as they had agreed and bound themselves-to do, but compelled him to wait for such stone for an unreasonably long time after they had been requested and ordered by this defendant to deliver the same; that this defendant, at said times, as the plaintiffs well knew, was at work upon such building with a large number of men, and that by reason of such failure, fault, and neglect on part of said plaintiffs' in not delivering such stone promptly and punctually, as they had so bound themselves and agreed to do, this defendant was actually and necessarily hindered and delayed in executing and completing such'work, and
3. That the counterclaim as to the breach and damages incurred thereby is too indefinite to constitute a substantive cause of action, and that it should allege with distinctness the nature of the damages sustained, and the definite damages sustained. In view of the well-established rule that on a demurrer ore terms the pleading should be liberally construed, we think that this counterclaim states the main facts which would constitute an affirmative cause of action. It states that by the unreasonable delay the defendant suffered damages in the sum of $400, by loss of time and expenses. The building was delayed by it, and the defendant had many hands employed, and that he was compelled to procure stone elsewhere, etc. If, as to these facts, the
2. That the counterclaim ought to state that the defendant was ready and willing to receive the stone at the proper time and to pay for the same. As to his being ready to receive the same, the defendant alleges that he particularly requested and ordered the delivery of the stone under the contract; and, as to his being ready to pay for the same, his contract is sufficient as to his liability and the plaintiffs’ security for payment on delivery.
3. The third contention is the main one —• that the answer shows that the defendant received the stone without objection, and had used them, so that they could not be returned; and "that therefore he could not counterclaim for damages for the delay. That which was recoupment in New York and some other states before the Codes, is now a counterclaim under the statute: (1) “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.” Sec. 2656, R. S. The doctrine of recoupment would seem to be most applicable to just such a case as this. “The right of the defendant in the same action to claim damages from the plaintiff, either because he has not complied with some cross-obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in the making or performance of the contract.” McAllister v. Reab, 4 Wend. 483; McAllister v. Reab, 8 Wend. 109; Mayor v. Mabie, 13 N. Y. 151; Epperly v. Bailey, 3 Ind. 72; Robertson v. Davenport, 27 Ala. 574; Wheat v. Dotson, 12 Ark. 699; Culver v. Blake, 6 B. Mon. 528; Ward v. Fellers, 3 Mich. 281; Higgins v. Lee, 16 Ill. 495. But there was a limitation to recoupment which does not exist in the statutory coum
In Getty v. Rountree, 2 Pin. 379, the plaintiff, as the manufacturer, contracted to deliver to the .defendant a pump designed to exhaust water from a mine, and there was an implied warranty that it would answer the purpose for which it was intended; the defendant received and used the pump, and in an action for its price he was allowed to reduce it by his damages for its failure to work well by reason of its improper construction. The court says: “To return it and resort to an action for the recovery of their money paid, would have been but adding to their losses.” The case of Fisk v. Tank, 12 Wis. 276, was decided upon the authority of the above case, and is especially applicable to this case. That was an action for breach of a contract to
By the Court.— The judgment of the county courtis reversed, and the cause is remanded to the superior court of Milwaukee county for a new trial.