95 So. 313 | Miss. | 1922
delivered the opinion of the court.
This is an appeal from the chancery court of Forrest county by Sterling Products Company, .an Indiana corporation, from a final decree against it in favor of appellee, Watkins-Gray Lumber Company, a Mississippi corporation, rendered in a cause in said court wherein appel-' lant was complainant and cross-defendant and appellee defendant and cross-complainant.
Appellant’s bill was for the purpose of canceling a contract existing between its predecessor in title, Evansville Brewing Association, also an Indiana corporation, and appellee, by the terms of which the former agreed to sell the latter in carload lots as ordered a.t prices named in said contract near beer, and to recover of appellee two thousand two hundred fourteen dollars and forty-four cents, the balance alleged to be due by it to appellant for goods sold and delivered under said contract. Appellant sought to cancel said contract on the ground that it had been violated by appellee. Appellee answered, making its answer a cross-bill denying that it had breached said contract, and averring that, on the contrary, it had been breached by appellant by reason whereof appellee had suffered damages in the sum of nine thousand two hundred dollars, which appellee asked to be set off against the claim of appellant, and that it be given a decree over against appellant for the difference. The cause was heard on the pleadings and proof, and a decree rendered in favor of appellee on its cross-bill for four thousand seven hundred thirty-seven dollars, being the difference between six thousand seven hundred seventy-five dollars, the amount of damages the court found appellee had suffered on account of appellant’s breach of said contract, and the sum of two thousand thirty-eight dollars, the balance found by the
The only assignment of error of sufficient seriousness to require discussion is that the court erred in rendering a decree over for appellee against appellant for the difference between the claim of the former and the latter. Appellant’s contention is that appellee’s claim for damages could only be used to the extent of extinguishing the claim of appellant; in other words, that it could be used only by Avay of recoupment as in the laAV courts, and that recovery over for the difference in favor of appellee could not be had. This further statement of the case may serve to make clearer the point involved in our decision thereof. (Appellant succeeded to the rights and obligations of the Evansville Brewing Company, therefore they ayíII be referred to indifferently as “appellant.”) Some time prior and subsequent to the 25th of February, 1918, the United States government maintained near Hattiesburg in this state Camp Shelby for the training of soldiers for the World War. Appellant Avas engaged at Evansville, Ind., in manufacturing and selling in large quantities a drink called “Sterling,” being a near beer. The sale of such drinks Avas a part of appellee’s business which it carried on in the Hattiesburg territory, and especially at Camp Shelby. On the date referred to appellant and appellee entered into a Avritten contract by the terms of which appellant agreed to sell and deliver to appellee in carload lots as ordered said beverage, and appellant was to sell said beverage to appellee exclusively in said territory, and the latter was to handle no other beverage of like character in said territory. The life of the contract Avas to be measured by the time the government maintained said training camp. Soon after the contract was executed the parties begun operations thereunder, and in the next feAV months appellant had shipped appellee under said contract about forty carloads of said beverage, which the latter sold, the purchase price of Avhich, as- fixed in said contract, Avas more than
It will be seen, therefore, that appellee’s counterclaim was for unliquidated damages growing out of a breach by appellant of the identical contract which was the basis of the latter’s suit against the former. And it will be observed that the court in its decree did not stop with extinguishing by way of recoupment appellant’s claim with that of appellee, but in addition gave the latter a decree over against the former for the difference between said claims. Manifestly such a judgment could not have been rendered in a court of law for two reasons: First, appellee’s claim, being for unliquidated damages growing out of the contract sued on, could not have been used in a court of law as a counterclaim under our set-off statute (section 745, Code of 11106; section 528, Hemingway’s Code) as construed by many decisions of this court; second, although such a claim could be used in a court of law by way of recoupment to the extent of extinguishing the plaintiff’s claim, the defendant could not recover a judgment over on such a claim against the plaintiff for the difference in their respective demands.
This court has held in several cases, which is in line with the decisions of the courts of this country generally, that, in the absence of any statute, recoupment is purely a defensive claim, and cannot be used offensively in the law courts; that the defendant may use such a claim to extinguish plaintiff’s claim upon which suit is brought, but not to recover a judgment over against the plaintiff for
Do the same principles obtain in a court of equity? Set-off and counterclaim had their origin in the courts of equity. Statutes authorizing courts of law to entertain set-off to that extent only adopted principles already recognized in courts of equity. The doctrine of recoupment by which the plaintiff’s recovery may be reduced by means of a claim for damages in favor of the defendant is of very recent origin in the common-law courts, but such counterclaims, as well as claims which may be the basis of set-off under our statute in courts of law, have been long recognized and administered in courts of equity. The doctrine was found to be absolutely necessary under certain conditions in order to prevent injustice. In such cases courts of equity in one suit adjusted all conflicting demands between the parties where capable of adjustment. Their jurisdiction in this respect is in no wise affected by statutes allowing set-off and recoupment in courts of law, nor are they affected in any sense by the repeal of such statutes.. 24 R. C. L., sections 12 and 13, pp. 803, 804, and 805. 1 Pomeroy’s Equity Jurisprudence (4th Ed.), section 175, p. 223, states the principle thus:
“The doctrine of set-off, by which a defendant may recover judgment for a debt against the plaintiff, is wholly of a statutory origin; and the doctrine of recoupment, by which the plaintiff’s pecuniary recovery may be lessened by means of a claim for damages in favor of the defendant, is a very recent innovation upon the common-law methods of procedure. The modes of procedure in a court of equity have never been thus restricted. Its decree is not confined to a single adjudication for or against the defendant; but, as a preliminary, and leading up to the final aAvard in favor of either party, or even in the very final award itself being thus partially in favor of both litigants, it may make any adjustments, admit any limitations, and determine*154 upon any cross-demands and subordinate claims which complete justice done to the parties shall require. The decree in equity can thus easily shape itself to the circuml stances of each case, even when the final relief is only an, award of money, or of possession of land or of chattels.”
Story in volume 2, Equity Jurisprudence, section 1437, said: “It has already been suggested that courts of equity will extend the doctrine of set-off and claims in the nature of set-off beyond the law in all cases where peculiar equities intervene between the parties. These are so various as to admit of no comprehensive enumeration.”
Some of the cases illustrative of the principle here involved are: Ewing-Merkel Electric Co. v. Water Co., 92 Ark. 594, 124 S. W. 509, 30 L. R. A. (N. S.) 21, and note, 19 Ann. Cas. 1041, and note; Porter v. Roseman, 165 Ind. 255, 74 N. E. 1105, 112 Am. St. Rep. 222, 6 Ann. Cas. 718, and note; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565.
Among the well-established grounds for courts of equity entertaining such counterclaims is the nonresidence of the complainant. In such a case it has been repeatedly held that the defendant will not be required to go into a foreign jurisdiction to enforce his counterclaim against the complainant; that to so require would be unjust and inequitable. 24 R. C. L., section 14, pp. 806 and 807.
The case of Ewing-Merkel Electric Company v. Light & Water Co., supra, is squarely in point. Ewing-Merkel Electric Company was a corporation under the laws of Missouri; it sold the Louisville Light & Water Company, a corporation under the laws of Arkansas, and doing business therein, machinery for a light plant for one thousand one hundred fifty dollars. There was a written contract of sale by the terms of which the machinery was guaranteed by the seller to be in strictly first-class order and good operative condition. The purchaser paid all the purchase price except one hundred eighteen dollars and four cents, for which the seller sued the purchaser in a law court in Arkansas from which the cause was transferred to a court
“In Forces v. Cooper, 88 Ky. 285. [11 S. W. 24], it is said: ‘It is certainly unconscientious for an insolvent party to coerce the payment of his claim when he is owing the other party an equal or larger sum, and thus leave the fatter remediless, nor should a nonresident be allowed, under like circumstances, to enforce through the agency of the courts the collection of his debt, and compel the other party to seek a foreign jurisdiction for relief, and then perhaps find the debtor insolvent. If the object of litigation be the attainment of justice, assuredly such results should be prevented. Indeed, the doctrine of equitable set-off, to the extent it' was formerly applied, was based upon moral justice, and to meet such cases as the above, thus preventing wrong. It was then not uncommon to stay an insolvent or nonresident debtor in the collection of his claim until damages, to which the complainant might be entitled against him, were liquidated under the order of the chancellor, and then apply them in satisfaction of his independent debt.’
“In Quick v. Lemon, 105 Ill. 578, it is said: ‘It would seem to be inequitable to require the corporation to go to another state to collect its demand in an action at law, and we are inclined to hold that the nonresidence of the complainant, in connection with the fact that he calls upon a court’of equity to enforce his judgment, is sufficient to allow the defendant corporation to prove and set off its*156 demand set up in the cross-bill against the judgment of the complainant.’ ”
And in concluding its opinion it said: “The rule announced in these cases is a just rule, and should be enforced. We see no good reason for sending a citizen of this state to a foreign jurisdiction to obtain justice when the courts of this state can afford relief. They are as fully competent to afford relief to the citizen as to the nonresident. Why should one in cases like this be accorded greater rights" than the other ?”
Although the cases were different on their facts from the present case the principle was recognized by our court in McIntyre v. Forbes Piano Co., 100 Miss. 517, 56 So. 457, and Graves v. Hull, 27 Miss. 419, that a court of equity will entertain set-off on behalf of a defendant where it is necessary to prevent injustice, although not of a character to be entertained by a court of law, and that, notwithstand-' ing ordinarily a court of equity will follow the law in such matters, there is an exception to the rule as to equitable set-off where the complainant is a non-resident. In the latter case touching this question the court used the following language:
“As the judgment enjoined stands, it is clear that the debts alleged to be due Hull from Graves would not be the subject of a legal set-off. The equitable circumstances giving the right of set-off were, that the judgment really belonged to Graves, though nominally for the use of White, and that Graves had agreed to credit these claims, in consequence of which Hull had taken no steps to collect them, and, unless that agreement is enforced, that he will lose them; and hence the necessity of resorting to a court of equity. If these facts be true, they furnish sufficient ground for relief in equity. It is noto the settled doctrine in equity, that if, from the nature of the claim or situation of the parties, justice cannot be done at law, chancery will allow a set-off in a case not within the statute of set-off.” (Italics ours.)
.The chancellor was justified from the evidence in holding that appellant, and not appellee, breached the contract 'sued on, and that the damages suffered by the appellee was in contemplation of the parties to said contract, and also in awarding appellee a decree over against appellant for the difference in their claims.
Affirmed.