Sheldon, J.
The exception to the refusal of the judge to allow the plaintiff to file a claim for a trial by jury cannot be sustained. That question was to be determined by the judge as a matter of discretion and is not the subject of exceptions. Bailey v. Joy, [442] 132 Mass. 356. Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591. Graham v. Lord, 170 Mass. 1. Stevens v. McDonald, 173 Mass. 382. Thompson v. King, 173 Mass. 439, 443. Gallagher v. Silberstein, 182 Mass. 20. Dolan v. Boott Cotton Mills, 185 Mass. 576. Clark v. Baker, 192 Mass. 226.
The question which lies at the foundation of the case is whether the defendants have the right to recoup from the sum which they are held to pay to the plaintiff the amount of the damages sustained by the Hatch Storage Battery Company in consequence of the plaintiff’s failure to use reasonable diligence to preservé in good order the battery which he had bought from that company.
' The amount of such damages, even if they had been liquidated, could not have been set off by these defendants against the claim of the plaintiff in an ordinary action at law, although they were merely sureties for the company. That is settled by our decisions, and we need not consider whether the courts of some other States have not laid down a different rule. Warren v. Wells, 1 Met. 80. St. Louis Perpetual Ins. Co. v. Homer, 9 Met. 39. Walker v. Leighton, 11 Mass. 140. Rawson v. Rawson, 105 Mass. 214, 215. Barnstable Savings Bank v. Snow, 128 Mass. 512. Brooks v. Stackpole, 168 Mass. 537. Simmons v. Shaw, 172 Mass. 516. McGuinness v. Kyle, 208 Mass. 443.
But the defendants contend that the bond upon which they are held was by its terms tied to the contracts between the plaintiff and the Hatch Company; that the claim which they set up grew out of the plaintiff’s obligation under those contracts, that is, his alleged obligation to take at least reasonable care of the battery so as to return it in proper condition if he elected to withdraw from his contract of purchase; that accordingly the claim against him grew out of the same transaction as his purchase of the battery and so could have been made a ground of recoupment by the company if the plaintiff had sued it directly for the return of the price paid by him, as he might have done; that as the bond given by the defendants, though a different instrument, constituted in reality a part of the transaction between the plaintiff and the Hatch Company, and as the defendants have the right to make available to themselves all the securities and all the means of payment held by the plaintiff against the Hatch Company, so they also have the right to be exonerated by the Hatch Company, [443] their principal, from their liability to the plaintiff and for that purpose to enforce, so far as necessary, all the rights of the Hatch Company against the plaintiff for their indemnity and in reduction of their liability, just as the Hatch Company might have done. And they point out that although this is an action at law and their liability upon the bond has been settled (Graham v. Middleby, 185 Mass. 349) upon principles of strict law, yet execution is to issue only for what is found to be “ due and payable in equity and good conscience;” R. L. c. 177, § 10; and so they insist that the question now raised is to be settled by the rules of justice and equity. Merrill v. McIntire, 13 Gray, 157. Austin v. Moore, 7 Met. 116, 125. Hatch v. Attleborough, 97 Mass. 533, 538. Leonard v. Whitney, 109 Mass. 265. Commonwealth v. Gould, 118 Mass. 300, 307. Quinn v. Brennan, 148 Mass. 562. Forbes v. Ware, 172 Mass. 306.
There is force in the reasoning of the defendants. It was substantially applied and an equitable defense on similar grounds was sustained in Bechervaise v. Lewis, L. R. 7 C. P. 372. Some decisions made elsewhere tend more or less strongly to support it. Downer v. Dana, 17 Vt. 518. Concord v. Pillsbury, 33 N. H. 310. Hollister v. Davis, 54 Penn. St. 508. M’Hardy v. Wadsworth, 8 Mich. 349, 353. Cole v. Justice, 8 Ala. 793. Waterman v. Clark, 76 Ill. 428. Meyer v. Stookey, 3 Ill. App. 336. It may be, though that question will not be decided until it shall have arisen, that in a proper case, with proper parties before the court, where irremediable wrong otherwise would be done to a surety or to one under a merely indirect or secondary liability, we might be disposed to stretch the equitable doctrine even to the extent that here has been contended for. But the general rule unquestionably is that no one can set up a claim of recoupment by way of defense unless he could have enforced the alleged liability by a direct action thereon. Sawyer v. Wiswell, 9 Allen, 39, 42. McCarthy v. Henderson, 138 Mass. 310, 313. Thayer v. Jewett, 22 Maine, 19. Kinne v. New Haven, 32 Conn. 210. Elliott v. Brady, 192 N. Y. 221. Kinzie v. Riely, 100 Va. 709. Tully v. Excelsior Iron Works, 115 Ill. 544, 549, 550. Gibbony v. Wayne, 141 Ala. 300. D. M. Osborne Co. v. Bryce, 23 Fed. Rep. 171. The doctrine contended for is one of equity merely, and will be applied only so far as is necessary for the proper protection of a surety and only so far as [444] can be done without injury to the rights of others having equal or superior equities to those invoked in the special case. Coffin v. McLean, 80 N. Y. 560. Orris v. Newell, 17 Conn. 97. Coates’s Appeal, 7 W. & S. 99. Eaton v. Hasty, 6 Neb. 419. Leggett v. Humphreys, 21 How. 66. Joyce v. Cockrill, 92 Fed. Rep. 838, 845. It was so restricted in a State where the decisions have tended as strongly as any others to support the defendants’ contention. Graff v. Kahn, 18 Ill. App. 485.
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Sheldon, J.
The exception to the refusal of the judge to allow the plaintiff to file a claim for a trial by jury cannot be sustained. That question was to be determined by the judge as a matter of discretion and is not the subject of exceptions. Bailey v. Joy, [442] 132 Mass. 356. Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591. Graham v. Lord, 170 Mass. 1. Stevens v. McDonald, 173 Mass. 382. Thompson v. King, 173 Mass. 439, 443. Gallagher v. Silberstein, 182 Mass. 20. Dolan v. Boott Cotton Mills, 185 Mass. 576. Clark v. Baker, 192 Mass. 226.
The question which lies at the foundation of the case is whether the defendants have the right to recoup from the sum which they are held to pay to the plaintiff the amount of the damages sustained by the Hatch Storage Battery Company in consequence of the plaintiff’s failure to use reasonable diligence to preservé in good order the battery which he had bought from that company.
' The amount of such damages, even if they had been liquidated, could not have been set off by these defendants against the claim of the plaintiff in an ordinary action at law, although they were merely sureties for the company. That is settled by our decisions, and we need not consider whether the courts of some other States have not laid down a different rule. Warren v. Wells, 1 Met. 80. St. Louis Perpetual Ins. Co. v. Homer, 9 Met. 39. Walker v. Leighton, 11 Mass. 140. Rawson v. Rawson, 105 Mass. 214, 215. Barnstable Savings Bank v. Snow, 128 Mass. 512. Brooks v. Stackpole, 168 Mass. 537. Simmons v. Shaw, 172 Mass. 516. McGuinness v. Kyle, 208 Mass. 443.
But the defendants contend that the bond upon which they are held was by its terms tied to the contracts between the plaintiff and the Hatch Company; that the claim which they set up grew out of the plaintiff’s obligation under those contracts, that is, his alleged obligation to take at least reasonable care of the battery so as to return it in proper condition if he elected to withdraw from his contract of purchase; that accordingly the claim against him grew out of the same transaction as his purchase of the battery and so could have been made a ground of recoupment by the company if the plaintiff had sued it directly for the return of the price paid by him, as he might have done; that as the bond given by the defendants, though a different instrument, constituted in reality a part of the transaction between the plaintiff and the Hatch Company, and as the defendants have the right to make available to themselves all the securities and all the means of payment held by the plaintiff against the Hatch Company, so they also have the right to be exonerated by the Hatch Company, [443] their principal, from their liability to the plaintiff and for that purpose to enforce, so far as necessary, all the rights of the Hatch Company against the plaintiff for their indemnity and in reduction of their liability, just as the Hatch Company might have done. And they point out that although this is an action at law and their liability upon the bond has been settled (Graham v. Middleby, 185 Mass. 349) upon principles of strict law, yet execution is to issue only for what is found to be “ due and payable in equity and good conscience;” R. L. c. 177, § 10; and so they insist that the question now raised is to be settled by the rules of justice and equity. Merrill v. McIntire, 13 Gray, 157. Austin v. Moore, 7 Met. 116, 125. Hatch v. Attleborough, 97 Mass. 533, 538. Leonard v. Whitney, 109 Mass. 265. Commonwealth v. Gould, 118 Mass. 300, 307. Quinn v. Brennan, 148 Mass. 562. Forbes v. Ware, 172 Mass. 306.
There is force in the reasoning of the defendants. It was substantially applied and an equitable defense on similar grounds was sustained in Bechervaise v. Lewis, L. R. 7 C. P. 372. Some decisions made elsewhere tend more or less strongly to support it. Downer v. Dana, 17 Vt. 518. Concord v. Pillsbury, 33 N. H. 310. Hollister v. Davis, 54 Penn. St. 508. M’Hardy v. Wadsworth, 8 Mich. 349, 353. Cole v. Justice, 8 Ala. 793. Waterman v. Clark, 76 Ill. 428. Meyer v. Stookey, 3 Ill. App. 336. It may be, though that question will not be decided until it shall have arisen, that in a proper case, with proper parties before the court, where irremediable wrong otherwise would be done to a surety or to one under a merely indirect or secondary liability, we might be disposed to stretch the equitable doctrine even to the extent that here has been contended for. But the general rule unquestionably is that no one can set up a claim of recoupment by way of defense unless he could have enforced the alleged liability by a direct action thereon. Sawyer v. Wiswell, 9 Allen, 39, 42. McCarthy v. Henderson, 138 Mass. 310, 313. Thayer v. Jewett, 22 Maine, 19. Kinne v. New Haven, 32 Conn. 210. Elliott v. Brady, 192 N. Y. 221. Kinzie v. Riely, 100 Va. 709. Tully v. Excelsior Iron Works, 115 Ill. 544, 549, 550. Gibbony v. Wayne, 141 Ala. 300. D. M. Osborne Co. v. Bryce, 23 Fed. Rep. 171. The doctrine contended for is one of equity merely, and will be applied only so far as is necessary for the proper protection of a surety and only so far as [444] can be done without injury to the rights of others having equal or superior equities to those invoked in the special case. Coffin v. McLean, 80 N. Y. 560. Orris v. Newell, 17 Conn. 97. Coates’s Appeal, 7 W. & S. 99. Eaton v. Hasty, 6 Neb. 419. Leggett v. Humphreys, 21 How. 66. Joyce v. Cockrill, 92 Fed. Rep. 838, 845. It was so restricted in a State where the decisions have tended as strongly as any others to support the defendants’ contention. Graff v. Kahn, 18 Ill. App. 485.
In this case, the battery in the hands of the plaintiff, even after he had exercised his option to withdraw from his contract of purchase, was in no sense a security or means of payment held by him to secure the payment for which the defendants have bound themselves. The contention of the defendants is that when he withdrew from the contract which alone gave to him or his assignee any right to hold the battery, it became his duty to surrender it to the company, at least upon demand. For a failure to do this, or for any failure to protect the battery from injury so far as it was his duty to do so, he was liable to the company. For a breach of his duty in either of these respects the company could hold him liable in a direct action against him; or, if it so elected, it may be that it could have used its claim against him as a basis of recoupment if he had sued it for the recovery of the money which he had paid to it. But it was for the company to elect which one of these courses it would adopt. Gillespie v. Torrance, 25 N. Y. 306. Lasher v. Williamson, 55 N. Y. 619. Elliott v. Brady, 192 N. Y. 221. Baltimore & Ohio Railroad v. Bitner, 15 W. Va. 455. If the company had chosen the latter course, its claim could have been availed of only to the extent of meeting the plaintiff’s demand; O’Connor v. Varney, 10 Gray, 231; and the company hardly would have done so if (as in the case before us there was evidence tending to show) in order to get its goods upon the market it really had sold the battery to the plaintiff for a price much less than its value. In that event, and if the company deemed the claims set up by the defendants to be well founded, it doubtless would have preferred to submit to the demand of the plaintiff for reimbursement and seek to hold him for the whole value of the battery. But if the defendants can, without the concurrence of the company, by their own election made in an action to which the company is not a party, exercise [445] an option which the company has not as yet seen fit to exercise, perhaps has not yet been called upon to exercise, a great injustice may be done either to the plaintiff or to the company. If the company is not bound by what is done in this action, to which so far as appears it is a mere stranger, and if the defendants shall succeed in maintaining their claim to recoupment, the plaintiff will remain liable to the company for any breach of his obligation to it, and after having allowed to the defendants damages for that breach to the extent of his demand against them, may be compelled to pay to the company full damages for the same breach, perhaps to a greater amount than will have been allowed against him in this action. If, however, the company is bound by the election of the defendants and so cannot hereafter maintain its action against the plaintiff for the liability which it necessarily will have been found that he was under to it, then the company will, without its consent, by the action of its sureties and former directors in a suit of which it had no notice or knowledge, have been deprived of a vested right of action, perhaps (as some of the evidence indicates) of considerably greater value than the amount of the relief thus afforded to its sureties. Neither of these alternatives ought to be allowed.
Whether these defendants could by a suit in equity compel the company to enforce for their protection any claim it may have against the plaintiff by reason of its transactions with him, is not before us, and we express no opinion upon the question.
The plaintiff’s exception to the refusal to allow him a trial by jury must be overruled. On the appeals from the order of the Superior Court upon the assessor’s report, that order must be reversed; and an order should be entered upon the facts found by the assessor, sustaining the plaintiff’s first exception to the assessor’s report and overruling all the other exceptions thereto of each party as being either unfounded or immaterial, and ordering execution to issue in favor of the plaintiff against the defendants for the sum of $6,000 with interest from the date of the writ, not exceeding however the amount of the verdict with interest thereon.
So ordered.