Ashe-Carson Co. v. Bonifay

• Decision Date: 30 June 1906
• Citation: 147 Ala. 376,41 So. 816
• Parties: ASHE-CARSON CO. v. BONIFAY ET AL. (THREE CASES.
• Court: Alabama Supreme Court

41 So. 816

147 Ala. 376

ASHE-CARSON CO. v. BONIFAY ET AL. (THREE CASES.

Supreme Court of Alabama

June 30, 1906

Appeal from Chancery Court, Covington County; W. L. Parks Chancellor.

"To be officially reported."

Bill by the Ashe-Carson Company against R. A. Bonifay and others, in which defendants filed a cross-bill. From a decree sustaining defendants' pleas to the bill, discharging an injunction on defendants' cross-bill, and overruling a motion to dissolve an injunction granted defendants on their cross-bill on the coming in of the answer to the same, complainant prosecutes separate appeals. Affirmed.

The bill alleges the leasing to appellant by appellees of certain lands for turpentine purposes, and the right to go upon the same, erect stills, box the pine trees, procure the crude turpentine, and manufacture the same into the spirits of turpentine and into rosin. It alleges that appellees have gone upon the land in violation of the lease and cut down and hauled away a lot of trees that were boxed and being used for turpentine purposes, and that they had threatened to continue to do so. It prays damages for the trespasses already committed and to prevent further commission of the trespasses complained of. The appellees filed certain pleas and cross-bills, setting up a violation of the lease contract by appellant, in that, they had boxed trees on said land of smaller diameter than was permitted by the terms of the contract, and that as a result of the same a large number of their valuable pine trees, not for turpentine purposes, but valuable for lumber, in which business they were engaged, had died or blown down, and that other large numbers would likely die or be blown down, alleging their damages in a large sum which they offered to set off or recoup against the damages set up in the original bill; and the cross-bill also prays injunctive relief. The other facts sufficiently appear in the opinion.

The first appeal is prosecuted from a decree of the chancellor holding appellees' pleas to the original bill to be good. The second appeal is taken from a decree of the chancellor to discharge the injunction issued on appellees' cross-bill and the third appeal is taken from a similar order overruling in motion to dissolve the injunction granted appellees on their cross-bill on the coming in of the answer to the same.

Powell Albritton & Albritton and Stallings & Reid, for appellant.

Foster, Samford & Carroll, for appellees.

HARALSON J.

It is well said that "a cross-bill is proper and allowable whenever it is necessary to do complete justice between the parties, and to adjust all the equities between them connected with the subject-matter of the original bill new issues in relation to the original matter may be brought forward. As against the plaintiff in the original bill, it is not always necessary that the cross-bill should show any ground of equity or ask equitable relief. No affirmative relief can be obtained under an answer. It requires a cross-bill to do that." Davis v. Cook, 65 Ala. 617; Morton v. N. O. & Selma Railway Co., 79 Ala. 591, 607; Whitfield v. Riddle, 78 Ala. 104; Nelson v. Dunn, 15 Ala. 501.

Inadequacy of legal remedies in the first place is not an essential element of a cross-bill. It must relate to the subject-matter of the original bill. If it does, it brings forward purely legal claims. Davis v. Cook, supra; Stevens v. Hertzler, 114 Ala. 564, 578, 22 So. 121; Wadsworth v. Goree, 96 Ala. 227, 10 So. 848; Nelson v. Dunn, 15 Ala. 502.

"The essential difference between recoupment or reduction on the one hand, and set-off on the other, is that in set-off the ground taken by the defendant is, that he may owe the plaintiff what he claims, but that a part or the whole of the debt is paid in reason and justice by a distinct and unconnected debt which the plaintiff owes him, * * * * while on a plea of recoupment, a defendant may deduct from plaintiff's claim all just demands or claims owed by him, or judgments made by him in the very same transaction, or even in other but clearly connected transactions. They must, however, be so connected as fairly to authorize the defendant to say that he does not owe the plaintiff on that cause of action so much as he seeks, and not that he ought not to pay plaintiff so much, because on another cause of action the plaintiff owes him." 2 Parsons on Contracts, pp. 562, 563.

In Grisham v. Bodman, 111 Ala. 200, 20 So. 515, we said: "Recoupment is not merely a cross action, as is set-off; the plea does not confess the indebtedness counted on in the complaint and bring forward a counter indebtedness from the plaintiff to the defendant, as does the plea of set-off; but its proposition is that plaintiff's claim is based upon a particular contract or transaction, that to entitle the plaintiff to the sum he claims it was upon him to comply with certain obligations of the contract or to discharge certain duties which the law imposed upon him in the making or performing of the contract, that he has failed to comply with such obligations or to discharge such duties, and that thereby the defendant has been so damaged in the particular transaction, or in respect of the particular contract, that the plaintiff is not entitled to recover; or, in other words, that the plaintiff has no debt or a less debt than he claims, as the case may be, against the defendant."

"It is not necessary that the opposing claims should be of the same character, but it is sufficient if they arise out of the same transaction or relate to the same subject-matter, and are susceptible of adjustment in one action. Within this principle a claim originating in a contract may be recouped against one founded in tort." 25 Am. & Eng. Ency. Law (2d Ed.) 558, and authorities there cited.

Applying these principles to the case in hand, it plainly...