Burke v. Western Newspaper Union

9 F.R.D. 343, 1945 U.S. Dist. LEXIS 1489

Opinion

HEALEY, District Judge.

The crucial allegation in Paragraph 4 is “that plaintiff, by his conduct, has induced the defendant to believe that he did not work overtime, * * The defendant’s contention is that the plaintiff is thus estopped. If the plaintiff did, in fact, deceitfully induce the defendant to believe that he did not work overtime, then the plaintiff would be estopped from claiming any overtime. Mortenson v. Western Light & Telephone Co., D.C., 42 F.Supp. 319. See also George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, 443, 151 A.L.R. 1081.

Paragraphs 6 and 8 in reality state a compulsory counterclaim under Rule 13(a), Federal Rules of Civil Procedure, 28 U.S. C.A., based on the allegations of Paragraph 4, and will be treated as such, although designated as a defense. Rule 8(c).

The plaintiff’s motion is, therefore, denied.