Barnum v. Keeler

33 Conn. 209

• Court: Supreme Court of Connecticut
• Decided: February 15, 1866
• Status: Published

Opinion

Carpenter, J.

If the plaintiff had brought an action for the recovery of rent due under this lease, the defendant might, under appropriate pleadings, recoup such damages as he has sustained by reason of the breach of the plaintiff’s covenants. Avery v. Brown, 31 Conn., 398.

And in this action, if the pleadings raised that issue, perhaps the defendant might show, if the fact was so, that the amount of damages sustained by him was equal to or greater than the rent due, as a defense to the action. But it is quite clear that if the damages are less than the rent due the evidence is immaterial; as the question is not how much, but whether any rent is due ; for if any is due the verdict must be the same, whether it is much or little. From the case as presented to us we strongly suspect the defendant’s damages would fall below the amount of rent due; but however this may be, the pleadings lay no foundation for the introduction of this evidence. The complaint alleges that- a quarter’s rent is due and unpaid. The plea is a general denial of all the allegations in the complaint. This gives the plaintiff no notice that the defendant will rely on a breach of the contract by the plaintiff. The matter relied on is matter of avoidance, being new matter, which admits the allegations in the complaint to be true, but insists that the plaintiff must fail, because the defendant has a claim against him, which he proposes to apply in payment of the rent. Ho does not claim to have paid the rent, but offers an excuse for not paying it. Defenses of this character must always be pleaded or notice thereof must be given under the general issue. Gould’s Pleading, p. 34.

There is therefore no error in the judgment complained of.

In this opinion the other judges concurred, except Butler, J., who having tried the case in the court below did not sit.