B. & O. R. R. Co. v. Jameson.
Decision Date | 07 September 1878 |
Citation | 13 W.Va. 833 |
Court | West Virginia Supreme Court |
Parties | B. & O. R. R. Co. v. Jameson. |
(Absent, Moore, Judge.)
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.
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:
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:
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...
To continue reading
Request your trial-
Johns-Manville Sales Corp. v. Connelly
...45 W.Va. 455, 32 S.E. 239; Clark's Cove Guano Co. v. Appling, 33 W.Va. 470, 10 S.E. 809; Logie v. Black, 24 W.Va. 1; Baltimore & O. R. Co. v. Jameson, 13 W.Va. 833. The only exception to that rule that this Court has recognized is well stated in Cook Pottery Co. v. Parker, 86 W.Va. 580, 104......
-
Krausse v. Greenfield
...... nonperformance of his part of the contract sued on, in which. case the damages to which the defendant was entitled could be. abated from the plaintiff's claim. Id. § 458. "The defense of recoupment," say the court in. Baltimore & Ohio R. Co. v. Jameson, 13 W.Va. 833, 31. Am.Rep. 775, 777, "differs from set-off in several. important particulars: First, it is confined to matters. arising out of, and connected with, the transaction or. contract upon which the suit was brought; secondly, it has no. [61 Or. 508] regard to ......
-
Ashland Coal & Coke Co v. Hull Coal & Coke Corp.
...33 W. Va. 102, 106, 10 S. E. 56; Baltimore, etc., Co. v. Bitner, 15 W. Va. 455, 464, 36 Am. Rep. 820; Baltimore, etc., Co. v. Jameson, 13 W. Va. 833, 838, 31 Am. Rep. 775. Instruction No. 3 embodies defendant's interpretation of the suspension or strike clause, and claims the benefit thereo......
-
J. C. Orrtck & Son Co v. Dawson
...damages he actually suffered resulting from plaintiff's breach of the contract, not to exceed plaintiff's claim. B. & O. R. R. Co. v. Jameson, 13 W. Va. 833, 31 Am. Rep. 775; Logie v. Black, 24 W. Va. 1; Dillon v. Eakle, 43 W. Va. 502, 27 S. E. 214; Bunting v. Cochran, 99 Va. 558, 39 S. E. ......