Penny v. Corey

41 So. 978, 147 Ala. 617, 1906 Ala. LEXIS 251

• Court: Supreme Court of Alabama
• Decided: June 30, 1906
• Status: Published

Opinions

ANDERSON, J.

By the pleading in the former case defendant sought a recoupment of damages for the breach of the contract of sale, and was awarded the difference between the amount claimed in the notes sued on in the first suit and the amount of the judgment recovered, which was $623, and which said sum is all that is available to the defendant for the breach of the contract of sale. And the defendant having exhausted his counterclaim growing out of said breach of sale, as represented by all of the notes, upon the suit -for the collection of the matured series of notes, cannot now use the same breach for the purpose of reducing the amount due on the second series of notes. While two separate suits were brought on the notes, they maturing at different times, they all evidenced and represented the consideration of but one contract of sale, and under the pleading and judgment in the former case the defendant got the benefit of all damage by way of recoupment, to which he was entitled, and which was conclusive. And as the damage then awarded was less than the amount claimed in the former suit, the ■ defendant thereby became precluded from setting up the same breach as a defense to the other notes, which had in no way entered into the amount awarded the plaintiff on the first payment. This court in discussing the conclusiveness of a plea of recoupment, while admitting that this is an unsettled question by some authorities, has set the lead which we will follow, and we quote Judge Stone, in the case of South & North Alabama R. R. Co. v. Henlein & Barr, 56 Ala. 374: “Such plea is in its very nature defensive, and the party making it seeks only to cut out, or keep back, a part or the whole of a plaintiff’s demand. Whether such defense is a waiver or abandonment of all claim by reason thereof, save that which abates or defeats plaintiff’s recovery, is not fully settled. This court, in McLane v. Miller, 12 Ala. 643, asserted the affirmative of the proposition, and declared that no action will lie for the recovery of a balance of a claim, a part of which has been used as recoupment of damages in a former suit, Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713, decides the same thing. In Waterman on Set-Off, this question is treated as unsettled, referring to Mandel v. Steel, 8 Mees. & W. 858. See Waterman on Set-Off, § 531; Mason v. Heyward, 3 Minn. 182 (Gil. 116). We prefer to follow the lead of McLane v. Miller, supra, and hold that, in such case, no action can be brought for the residuum of a claim, a part of Avhich has been utilized by way of recoupment in a former suit.” In the case of McLane v. Miller, supra, it Avas said: “That the plaintiff having in a former action, where he Avas defendant, insisted on a rebatement of the hire which he Avas to pay for the slaves, and having obtainecl it, for the reason that his possession was determined by the defendant’s act, he is concluded, so far as that extends, from again obtaining satisfaction for the same injury. It will be seen by this extract that the prohibition to recover extends only to the rebatement of the hire of the slaves, which the plaintiff' had recouped in the former action, and therefore Avas not permitted again to insist on.” It will be seen, by an application of the foregoing authorities to the case at bar, that the plea of recoupment in the former suit having fixed the defendant’s damage for the breach of the contract, he is concluded from again obtaining satisfaction for the same injury. In the case of Taylor v. Chambers, 1 Iowa, 124, notes for part of the purchase price of logs Avere resisted by the maker, because the logs Avere bought by him as good merchantile logs, whereas they were really “rotten and holloAV,” and damaged 20 per cent.; but it was shoAvn that on one of the hundred dollar notes, a prior suit had been brought, and defended on the same ground, resulting in a judgment against the defendant, the maker, for $78. The court said: “The defendants set up and caused their demand for damages —their whole demand — -to be adjudicated; and noAv to afterwards talk of their right to sever it is idle. When once adjudicated, and the amount deducted from the note in that suit, it no longer existed.” See, also, Gilmore v. Whiteman, (Neb.) 70 N. W. 365; Hoover v. Kilander, (Ind. Sup.) 34 N. E. 697; Clement v. Field, 147 U. S. 467, 13 Sup. Ct. 358, 37 L. Ed. 244; O’Conner v. Varncy, 10 Gray (Mass.) 231; Britton v. Turner, 26 Am. Dec. 713; Southeland on Damages, § 189. We consider the case of Brown v. First National Bank, 132 Fed. 450, 66 C. C. A. 293, relied upon by appellant, rather in favor of, instead of opposed to, the above doctrine.

The judgment of the circuit court is affirmed.

. McClellan, G. J., and Tyson and Simpson, JJ., concur.