J. C. Orrtck & Son Co v. Dawson

• Decision Date: 03 May 1910
• Citation: 68 S.E. 39,67 W.Va. 403
• Court: West Virginia Supreme Court
• Parties: J. C. ORRTCK & SON CO. v. DAWSON.

68 S.E. 39

(67 W.Va. 403)

J. C. ORRTCK & SON CO.

v.DAWSON.

Supreme Court of Appeals of West Virginia.

May 3, 1910.

(Syllabus by the Court.)

1. Set-Off and Counterclaim (§ 32^*)—Recoupment—Breach of Contract.

Defendant cannot recoup damages if they depend on the breach of a contract different from, and independent of, the one on which suit is brought.

[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. § 53; Dec. Dig. § 32.*]

2. Set-Off and Counterclaim ($ 32*)—Recoupment—Contracts.

In an action by plaintiff for the price of goods sold and delivered, defendant cannot recoup damages for plaintiff's refusal to accept other goods sold to plaintiff by defendant under a separate and independent contract.

[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. § 53; Dec. Dig. § 32.*]

3. Evidence (§ 441*) —Parol Evidence — Contradicting* Written Contract.

Parol testimony is inadmissible to prove an unwritten agreement made at the time of, or prior to, a written agreement, for the purpose of varying or contradicting the terms of the latter.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1719-1845, 2030-2047; Dec. Dig. § 441.*]

Error to Circuit Court, Morgan County.

Action by the J. C. Orrick & Son Company against W. E. Dawson. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

Forrest W. Brown, for plaintiff in error. Faulkner, Walker & Woods, for defendant in error.

WILLIAMS, J. Writ of error to circuit court of Morgan county. Action of assumpsit by the J. C. Orrick & Son Company, a corporation, against W. E. Dawson. Judgment for plaintiff, and defendant brings error.

Plaintiff is a wholesale dealer in cans and canned fruits and vegetables in the city of Cumberland, Md., and defendant is engaged in growing and canning fruits and vegetables in Morgan county, W. Va. Plaintiff sold a lot of cans and solder to defendant, and also bought from him some canned goods. The action is to recover the balance on account which plaintiff claims is due it. There is no dispute concerning the items of account as shown by plaintiff's bill of particulars, except an item of $28 for car demurrage, which plaintiff abandoned. The controversy is concerning the right of defendant to recoup damages for the alleged failure of plaintiff to accept canned goods

from defendant in payment of the cans and solder which it had sold him, with the understanding, as defendant claims, that they were to be thus paid for, but which agreement, it is contended, plaintiff refused to carry out. A trial was had at the July term, 1906, which resulted in a verdict in favor of plaintiff for $1,043.74, upon a demurrer by plaintiff to defendant's evidence. The court took time to consider of its judgment upon said demurrer until the April term, 1907, when it decided in favor of plaintiff, and rendered judgment for the amount of the verdict.

Defendant took two several bills of exceptions to the action of the court in refusing to permit him to give oral testimony to prove the following facts, viz.: That he had purchased the cans and solder from plaintiff with the understanding that they were to be paid for in canned goods in the season of 1903, as per agreement or order dated March 24, 1903. That J. C. Orrick, president of plaintiff company, had inspected and approved the canned goods at defendant's cannery. That defendant had shipped to plaintiff one car load of the goods. That it had the other goods ready to ship, but did not do so because plaintiff refused to accept them, and that, on account of such refusal to comply with its contract, defendant was compelled to sell the goods to another purchaser at a less price than that for which he had previous ly sold the same goods to plaintiff, after the season was over, and that he thereby suffered damages as set out in detail in his notice of recoupment, which amount of loss claimed is $1,677.85.

Was it error to exclude this testimony? Is it consistent with the facts stated in the notice of recoupment filed by defendant? Although the defense of recoupment, especially in an action of assumpsit, may be made under the general issue, and need not be specially pleaded (Franklin v. Lilly Lumber Co., 66 W. Va. 164, 66 S. E. 225; Sterling Organ Co. v. House, 25 W. Va. 64), still the evidence offered in support of the damage sought to be recouped should be consistent with the facts alleged in the written notice of recoupment. Defendant could not file notice of one state of facts as his grounds for recoupment, and then introduce evidence of a different state of facts. Such notice, while not a technical plea, is still in the nature of a plea to the extent, at least, that the probata would have to correspond with the allegata in the notice. Such rule is necessary to prevent a surprise to plaintiff. Powell v. Love, 36 W. Va. 96, 14 S. E. 405; Sterling Organ Co. v. House, 25 W. Va. 64. Defendant filed, as part of his notice of recoupment, a copy of the written contract of sale by him to plaintiff of "4, 000 cases offull standard 3 lb. Tomatoes at 72¢ per dozen, labeled." The contract was dated March 24, 1903, and the goods were to be delivered f. o. b. in Morgan county, W. Va., during the packing season of 1903. This would be some months after the date of the contract. The terms of sale expressly stated are: "Net cash on receipt of goods." Plaintiff's suit is for the price of cans and solder sold to defendant, and defendant contends that the sale of the tomatoes and the purchase of the cans are parts of one and the same transaction, constituting one contract; in other words, that the sale of the tomatoes was the consideration for the purchase of the cans; and that he was damaged by the subsequent failure of plaintiff to take the tomatoes. On the other hand, plaintiff contends that they are two separate transactions, made at different times, and therefore independent of each other. If...