Downing v. Wilcox

• Decision Date: 15 June 1911
• Citation: Downing v. Wilcox, 84 Conn. 437, 80 A. 288 (Conn. 1911)
• Parties: DOWNING et al. v. WILCOX.
• Court: Connecticut Supreme Court

80 A. 288

84 Conn. 437

DOWNING et al.

v. WILCOX.

Supreme Court of Errors of Connecticut.

June 15, 1911.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Action by James Downing and others against Calvin Wilcox. Judgment for plaintiffs, and defendant appeals. Affirmed.

The complaint alleges, in substance, the following facts: The defendant, for consideration, sold to the plaintiffs the wood and timber standing upon certain land described in the contract of sale by bounds, and containing by estimate 24 acres. The north bound was in part land of one Gardner, and the south in part land of the defendant. The defendant thereupon went upon the premises with the plaintiffs, and surveyed and staked out a line as the bound on Gardner, and agreed with the plaintiffs, in consideration that they would cut to the line so defined that he would save them harmless from any loss, cost, or damage incurred by them by reason of such cutting. The plaintiffs thereupon, acting under said sale and agreement, cut the wood and timber up to said line. Gardner thereupon brought an action against them, alleging that in so cutting they had trespassed and cut upon his (Gardner's) land. Gardner recovered judgment, which, together with certain costs and expenses necessarily incurred by the plain-tilt's herein in defending the action, they were obliged to pay, and did pay. The defendant had full knowledge of and assisted in the defense of said action, and consulted and ad-vised, will the plaintiffs in all that they did therein. The defendant has never paid the plaintiffs the amount which they so paid, and has failed and refused to do so. A demurrer to the complaint upon the ground that it appeared therefrom mat the agreement sued upon was without consideration was overruled.

The defendant set up "by way of set-off and counterclaim" that the plaintiffs in cutting the wood and timber upon the land covered by the sale described in the complaint had gone over its south line upon the land of the defendant, and there cut a considerable number of trees of varying diameters specifically set out, claimed damages as provided by statute, offered to set off so much as might be necessary against the plaintiffs' demand, if any should be found to exist, and claimed judgment for the balance. The plaintiffs demurred to this pleading upon the ground, in substance, that the cause of action therein set up was not one which could be pleaded by way of set-off or counterclaim in the present action. This demurrer was sustained.

William H. Shields and Telley E. Babcock, for appellant. Donald G. Perkins, for appellees.

PRENTICE, J. (after stating the facts as above). The demurrer to the complaint was properly overruled. The agreement of Indemnity set up as the basis of recovery related to land not covered by the pre-existing sale of standing timber. Upon the allegations it was both subsequent to and entirely outside of that transaction. Ample consideration to sustain it is to be found in the promisees' action in conformity to the agreement, and the resulting loss to them. Clark v. Sigourney, 17 Conn. 511, 517.

The demurrer to the set-off and counterclaim raises the question of the defendant's right to counterclaim his cause of action set up. The use of set-off and counterclaim in our practice results from and is regulated by that section of the practice act which is now section 612 of the General Statutes. There are certain other statutes, such as sections 624, 640, and 650 et seq., and certain rules of court, such as sections 171 to 175, touching the matter. But they are of only incidental consequence, and do not materially concern the present inquiry. We had occasion, in Boothe v. Armstrong, 76 Conn. 530, 532, 57 Atl. 173, to note that, while our practice act had appropriated the Code term "counterclaim," it was nowhere, either in statute or rule, defined, and its scope determined, as it is in the Codes of other jurisdictions, and that its definition and scope has been left to judicial determination. In that case we said that the term is used in our statutes and rules in a comprehensive sense, inclusive of all manner of permissible counter demands. There was no attempt, however, to define or to lay down rules for the determination of what counter demands in any given ease would be permissible. The first and only attempt to perform that duty in any broad way was made shortly after the act was adopted, in a carefully considered opinion written by the late Judge Loomis. The conclusion of the court is expressed as follows: "We are satisfied, therefore, that a defendant by a counterclaim under the statute cannot bring in for adjudication any matter that is not so connected with the matter in controversy under the original complaint that its consideration by the court is necessary for a full determination of the rights of the parties as to such matter in controversy, or, if it is of a wholly independent character, is a claim upon the plaintiff by way of set-off, and not a claim against a codefendant."

All permissible counterclaims were thus, for description and treatment, divided into two classes, to wit, those which are claims by way of set-off, and those which are not. We have no concern here with claims of the first class, whether the term "set-off," as used in the definition given, should be understood broadly as descriptive of set-off in its most comprehensive...