O'Connor v. Varney

76 Mass. 231

Opinion

Shaw, C. J.

The presiding judge rightly ruled that the former judgment was a bar to this action. A party against whom an action is brought on a contract has two modes of defending himself. He may allege specific breaches of the contract declared upon, and rely on them in defence. But if he intends to claim, by way .of damages for nonperformance of the contract, more than the amount for which he is sued, he must-not rely on the contract in defence, but must bring a cross action, and apply to the court to have the cases continued so that the executions may be set off. He cannot use the same defence, first as a shield, and then as a sword. Bennett v. Smith, 4 Gray, 50. Sargent v. Fitzpatrick, 4 Gray, 511. Sawyer v. Woodbury 7 Gray, 499.

Exceptions overruled.