B. & O. R. R. Co. v. Jameson.

Decision Date07 September 1878
Citation13 W.Va. 833
CourtWest Virginia Supreme Court
PartiesB. & O. R. R. Co. v. Jameson.

(Absent, Moore, Judge.)

1. In an action of debt on a penal bond conditioned, that if the-

plaintiff should incur loss, because the obligor in the bond, the plaintiff's agent, had made way with the plaintiff's money received by him as such agent, then if the obligor should recompense the plaintiff for such loss, the obligation should be void, or else remain in fall force, the defendant may plead, as a set-off, his services rendered as such agent.

2. Quaere Could the defendant in such suit, with or without no-

tice of his claim, under a plea of conditions performed, prove such services by way of recoupment,.

Writ of error and supersedeas to a judgment ^of^the circuit court of Jefferson county, rendered on 13th day of November, 1876, in an action of debt, in said court then pending, wherein the Baltimore and Ohio Railroad Company was 'plaintiff, and Jacob S. Jameson was defendant, awarded on the petition of said Jameson.

Hon. John Blair Hoge, judge of the third judicial circuit, rendered the judgment complained ot.

Green, President, furnishes the the following statement of the case:

On March 20, 1868, Jacob S. Jameson and W. T. Jameson executed and delivered to the Baltimore and Ohio Railroad Company a bond, which was in these words:

"Know all men by these presents, That we, Jacob S. Jameson and William T. Jameson, are held and firmly bound unto the Baltimore and Ohio Railroad Company in the full and just sum of $3,000.00, to be paid to the said company, or its certain attorney, to which payment well and truly to be made and done, we bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals dated this 20th day of March, in the year eighteen hundred and sixty-eight.

"Whereas, Jacob S. Jameson hath been appointed by said company as agent at Duffields, on the Baltimore and Ohio Railroad: Now, the condition of this obligation is such, that if the said Jacob S. Jameson do not at all times hereafter, so long as he shall hold said office, well and faithfully perform the duties of the said office, so that said company shall suffer no loss, damage or injury on account of any act or acts, either of omission or commission, oi the said Jacob S. Jameson, and without wasting, embezzling, spending, misapplying or unlawfully making way with the money, property or effects of the said company, or such as may come into his hands or under his control, while temporarily employed in any manner in the service of said company, while holding the office aforesaid. Then if the said Jacob S. Jameson, or W. T. Jameson, or either of them, or their or either of their heirs, executors or administrators, shall make due and sufficient recompense unto the said company for such loss, damage or injury, wasting, embezzling, spending, misapplying or unlawfully making way with, then this obligation to be Void, else to be in full force.

aJ. S. Jameson, [Seal.] "W. T. Jameson, [Seal.]

On August 30, 1875, the Baltimore and Ohio Railroad Company instituted a suit on said bond against Jacob S. Jameson, in the circuit court of Jefferson county. At September rules, 1875, the declaration was filed. It was in the usual form. The condition of the bond being set forth at length, the declaration concludes thus:

"And the plaintiff says, that neither the said Jacob S. Jameson nor W. T. Jameson, nor either of them have kept, performed and fulfilled the conditions aforesaid of the writing obligatory, but have failed so to do, have broken, failed to comply with and perform the same; and the plaintiff says, that the said J. S. Jameson, after the execution of the writing obligatory aforesaid, and while holding the said office of*agent of plaintiff at the said I) u Hie Ids, in the county of Jefferson aforesaid, to-wit, between the 1st day of September, 1874, and the 1st day of April, 1875^, and at divers times between said dates, the said J. S. Jameson received, as the agent of said plaintiff, at the said place, divers sums of money on account of tickets and freights, amounting to the sum of $395.00, which the said defendant, J. S. Jameson, although the plaintiff has demanded the same of the said defendant, has refused to pay said plaintiff; and the plaintiff avers, that although the said sum of $395.00 received, and which came into the hands and under the control of the said J. S. Jameson, as said agent of plaintiff, is long since due and payable, and the plaintiff has demanded the same of the said defendant, J. S. Jameson, yet neither the said J. S. Jameson nor W. T. Jameson, nor either of them, nor both of them, nor any other person, have made due and sufficient recompense unto the said plaintiff, the Baltimore and Ohio Railroad Company, for such loss, damage or injury, wasting, embezzling, spending, misapplying or unlawfully making way with said sum of $395.00 aforesaid, whereby an action hath accrued to the plaintiff to have of and from the defendant, J. S. Jameson, the sum of $3,000.00 above demanded; and although the said sum has long since been due and payable, nevertheless, the said defendant has not, nor has any other person as yet, paid to plaintiff the said $3,000.00, but has wholly neglected and refused, to plaintiff's damage $1,000.00*!"

At the first term of the circuit court the defendant, Jacob S. Jameson, appeared and pleaded conditions per- formed and set-off', and filed with the last plea his bill of; off-sets " for services as depot agent at Duffield's depot, rendered at the request of the plaintiff, from April 1,

1874, to April 1, 1875, $1,200.00;" to which pleas the plaintiff demurred, and issue thereon was joined. The court at the November term, 1876, overruled the demurrer to the plea of conditions performed, but sustained the demurrer to the plea of set-off, to which the defendant excepted. The defendant then filed a general replication to the plea of conditions performed; and both parties having waived a jury, the court proceeded to try the issue, and found upon the same for the plaintiff, and assessed its damages at the sum of $418.03; and thereupon the court rendered a judgment for the plaintiff against the defendant for $3,000.00, to be discharged by the payment for $418.03, with legal interest thereon from November 13, 1876, to the day the judgment was rendered, and the costs of the suit.

At the trial of the cause the plaintiff proved the execution and delivery of said bond, and the receipt by defendant between'October 31, 1874, and January 31,

1875, of $400.40, as agent of the plaintiff, for tickets sold and prepaid freight, and allowed as a credit against the same, commissions on said freight and tickets $22.65, leaving a balance due the plaintiff of $377.75. The defendant, to sustain the issue on his part, offered evidence tending to prove the charge for services as set forth in his bill of off-sets; but the court refused to receive this evidence, and the defendant excepted to the rejection of the evidence.

The defendant obtained from a Judge of this Court a writ of error and supersedeas to said judgment of the circuit court.

Daniel B. Lucas, for plaintiff in error, relied on the following authorities:

Code W. Ya. p. 609, §4; 7 Fost. (N. H.) 412; 5 Johns. 105; 18 Gratt, 722; 1 A. K. Mar. 19; 8 Mo. 309, 310; 4 J. J. Mar. 245; 3 Hayw. (Term.) 192; 33 N. H. 310; 3 Gratt, 87, 91, 93; 4 Gratt. 176; Sup. R.3 C. Va, p. 157, §62; 1 R, C. (1809) 487; 1 Dill. 585; 22 Gratt. 595, 605; Babington on Set-off 25, 93.

George Baylor, for defendant in error, relied on the following authorities:

8 Leigh 303; 5 Rob. Prac. 965, 967; 76 E C. L. 877;

6 Rand. 519; 18 Gratt, 728; 17 Gratt. 136; Law Lib. Vol. 5 pp. 4, 5, 6; 3 Johns. Ch. 357; Wat, on Set-off 348, 357, 358, 316, 317, 322, 142; 14 Mich. 152; 72 E. C. L. 23, 93; 5 M. & S. 439; 72 E. C. L. 66, 879; 2 Johns. 150; 3 Leigh 78; 123 Mass. 599; 3 Mich. 281;

7 W. Va. 460; 2 Gratt. 167; Wat. on Set-off 481, 482 466, 467; Id. 669.

Green, President, delivered the opinion of the Court:

The principal point involved in this case is: Did the court err in sustaining the demurrer to the plea of setoff? The plea of set-off is a creation of statute law. At common law, a defendant was in no case allowed to recover a judgment for damages for a positive claim against the plaintiff. At common law when there were mutual cross demands, unconnected with each other, arising upon contract express or implied, though the demands of each party were liquidated, or capable of bebeing ascertained by simple calculation, they could not be settled in one suit; but the defendant in such case was compelled to resort to a cross-action. To avoid a multiplicity of suits in such cases the statutes of setoff were enacted.

But at common law, the defendant had a right to reduce the plaintiff 's, damages in a few instances, when the reduction claimed sprang immediately from the claim relied on by the plaintiff. This was denominated a recoupment. This right was anciently confined within very narrow limits and was indeed little, if any thing, more than a mere right of deduction from the amount of;the plaintiff's recovery, on the ground that his damages were really not as high as alleged. This remedy of recoupment was of such limited application, and so tramelled originally by technicalities, that it was of but little use, and the term recoupment for a time became obsolete. Yet the principle was always retained.

Recently not only has the term recoupment been revived, but the doctrine has sprung into new life. The rigid rules of the common law, which so restricted this right, have yielded to the advance of civilization, and a new vigor has been infused into this remedy; and it is now held, that the defendant may recoup generally, whenever the demands of both parties spring out of the" same contract or transaction; and it opens in...

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