Calhoun v. McNair

• Decision Date: 24 February 1936
• Docket Number: 32112
• Citation: 175 Miss. 44,166 So. 330
• Court: Mississippi Supreme Court
• Parties: CALHOUN v. MCNAIR

166 So. 330

175 Miss. 44

CALHOUN v. MCNAIR

No. 32112

Supreme Court of Mississippi

February 24, 1936

Division B

1. SET-OFF AND COUNTERCLAIM.

In action on note, defendant held not entitled to recoup amount of damages arising from use of actionable words by plaintiff because of defendant's failure to pay note, since plea of recoupment was an independent tort (Code 1930, section 11).

2. SET-OFF AND COUNTERCLAIM.

In recoupment, defendant's claim must arise out of same contract or transaction as that on which plaintiff's cause of action is founded, or be connected with subject of action.

HON EDG. M. LANE, Judge.

APPEAL from the circuit court of Covington county HON. EDG. M. LANE Judge.

Action by P. F. McNair against C. C. Calhoun, wherein the defendant filed a plea of recoupment. From a judgment sustaining a demurrer to the defendant's plea of recoupment, the defendant appeals. Affirmed.

Affirmed.

E. L. Dent, W. W. Dent, and R. L. Calhoun, all of Collins, for appellant.

Recoupment is available in certain actions which are in form ex delicto, but in which the transaction out of which the tort arises is contractual in its nature. In such cases defendant may recoup damages for a tort which arises out of the same transaction.

23 Standard Proc., page 686; Carey v. Guillow, 105 Mass. 18, 7 Am. Rep. 494; Ewing v. Shaw, 83 Ala. 333, 3 So. 692.

A claim in tort may be recouped against one founded on contract if the two claims arise out of the same transaction.

23 Standard Proc. 693; Raymond v. State, 54 Miss. 562; Myers v. Estell, 47 Miss. 4; Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356.

While we have been unable to find any Mississippi authority directly in point as to filing a counterclaim in tort in actions on contract, from the definition of recoupment found in the above authorities, if the unlawful assault as set out in the plea arose out of matters connected with the transaction of loaning the money, or the promissory note which was but the evidence of the transaction, on which appellee's cause of action was founded, the plea of recoupment was proper and the demurrer should have been overruled. It appears that collecting the money due appellee, of which the note was but the evidence, was a part of and connected with the transaction.

Scott v. Waggoner, 48 Mont. 536, L. R. A. 1916C, 491; Colla v. Carmichael U-Drive Autos, 111 Cal.App. 378, 294 P. 378.

Whatever may be done by one person which affects another's rights and out of which a cause of action may arise is a "transaction."

Fraley v. Fraley, 64 S, E. 381, 150 N.C. 501; U. S. v. Pan-American Petroleum Co., 55 F.2d 753, 776; Guy Harris Buick Co. v. Bryant, 233 P. 752, 108 Okla. 117; Haut v. Dunderson, 211 N.W. 982, 54 N.D. 826; 63 C. J. 770-773; Andre v. Morrow, 65 Miss. 315, 3 So. 659; Amory independent Tel. Co. v. Cox, 103 Miss. 541, 60 So. 641; Bigby v. Parsons, 49 Conn. 483, 44 Am. Rep. 246; 24 R. C. L. 826, par. 33, and 844, sec. 49; 57 C. J. 405; Pack v. Brewer, 48 Ill. 54.

If there had been no loan of money, there would have been no assault. The loaning of the money and repayment of same was the transaction.

A. W. McRaney, of Magee, and H. M. McIntosh, of Collins, for appellee.

It has been almost universally held that a cross demand may be recouped even though it sound in tort, if it is connected with, and a part of, the contract or transaction upon which plaintiff's cause of action is based, provided both claims are of such a nature as to be susceptible of adjustment in one action. But defendant cannot recoup for torts not connected with plaintiff's cause of action.

34 Cyc. page 703.

It is an indispensable requisite to the allowance of the remedy of recoupment that the damages to be recouped should grow out of the very transaction upon which the plaintiff's claim is founded.

24 R. C. L. 851, par. 55.

The contract set forth in plaintiff's declaration as the foundation of his claim is a note dated May 25, 1929, which came due November 25, 1929, and the tort sought to be set up by the appellant in recoupment and the damages accruing as claimed by the plea was after the note came due and default was made in payment and a controversy arose between the parties litigant.

Columbia National Bank v. Rizer, 153 S.C. 43, 150 S.E. 316.

A counterclaim to be "connected with the subject of the action," must be directly connected, so that the parties could be supposed to have foreseen and contemplated it in their mutual acts.

68 A. L. R. 448 and 450; 7 Words and Phrases, page 315; 34 Cyc. 703; 24 R. C. L. 851, par. 55; 150 S.E. 316; 16 A. L. R. 315; 47 Miss, 4; 55 So. 356; 10 L. R. A. 378; 43 Am. R. 170; 60 L. R. A. 585; 3 N.E. 189; 48 P. 22; 15 S.E. 4; 200 N.W. 473; 58 L. R. A. 744.

Argued orally by R. L. Calhoun, for appellant.

OPINION

Ethridge, P. J.

P. F. McNair brought suit against C. C. Calhoun and another in the circuit court of Covington county upon a promissory note for two hundred dollars dated May 25, 1929, due November 25, 1929, and bearing eight per cent. interest from date until the filing of this suit on April 25, 1934.

The defendants filed a plea of the general issue, and thereafter made a motion to withdraw same and file a special plea, which motion was allowed. The defendants thereupon filed a plea of recoupment seeking to diminish or discharge the note because of certain insulting language used by McNair to the defendants uttered in the presence of two or more persons, in a rude, angry and threatening manner, and the exhibition of a knife and the threat to kill defendants because of their failure to pay the note. It will not be necessary to set out the language specifically, but it was such as to give rise to an action of slander or insult leading to a breach of the peace under our "Actionable Words" statute, section 11, Code of 1930.

There was a demurrer to the plea of recoupment which was sustained by the court below. This demurrer set forth that said plea of recoupment was not sufficient in law as a cross-demand because it was not a part of, or damages for a breach of the original contract, and that the same was for unliquidated damages and was not, therefore, maintainable as a set off to the...