Lehig. Nav. Coal Co. v. Keene Coal Co.

• Decision Date: 01 February 1938
• Citation: 197 A. 410
• Parties: LEHIG. NAV. COAL CO. v. KEENE COAL CO.
• Court: New Hampshire Supreme Court

197 A. 410

LEHIG. NAV. COAL CO.

v. KEENE COAL CO.

Supreme Court of New Hampshire. Cheshire.

Feb. 1, 1938.

Exceptions from Superior Court, Cheshire County; Burque, Judge.

Action at law to recover balance due on certain" notes by the Lehigh Navigation Coal Company against the Keene Coal Company and others. Judgment for the plaintiff, and defendants bring exceptions.

Exceptions overruled.

Action, at law, brought June 28, 1933, to recover the balance due on certain promissory notes, each dated March 20, 1933, payable to the plaintiff and signed by the defendant company. Trial by a referee. It was stated during oral argument in this court that there are two other defendants (comakers of the notes) who are not named in the bill of exceptions. These defendants are understood to be Joseph Myers, treasurer of the defendant company, and Rebecca Myers. The Keene Coal Company is hereinafter referred to as the defendant.

The referee recommended that judgment be entered for the plaintiff for $540.97 in case the trial court should deny the defendant's "motion to file an offset," made July 8, 1936. The court, having construed the defendant's answer of that date "to be in the form and nature of a set-off and recoupment," ruled that "the claim was filed too late" and ordered judgment on the report, subject to the defendant's exception. The defendant then moved that the judgment be vacated "on the ground that no opportunity was given for hearing upon the acceptance of the Master's report" or upon the question of the defendant's right to file the answer. This motion was denied and the defendant excepted. The answer follows:

"The defendants say that they are not indebted to the plaintiff in manner and form stated or in any other way.

"And the defendants say that the plaintiff is indebted to them because of the following items:

Freight paid . . . on car of

defective coal shipped May 16,

1929, . . . $227.76

Interest on same . . . 95.66

Payment for same on Sept. 24,

1929 416.06

Interest on same 907.98

Cost of removing coal from cellars

where delivered estimated 100.00

Loss of customers due to poor

quality, estimated 500.00

Credit. . .565.07

Balance. . .942.91

"Which same the defendants seek to recover, together with their costs in this action."

The defendant made a payment or payments on the notes after suit was brought. The consideration for the notes is not stated. Other facts appear in the opinion. The defendant's bill of exceptions was allowed by Burque, J.

J. Edward Flynn, of Concord, and Roy' M. Pickard, of Keene, for plaintiff. Chester B. Jordan, of Keene, for defendant.

MARBLE, Justice.

"All special pleas and brief statements shall be filed within sixty days from the commencement of the term when the action is entered * * * (rule 17 of the superior court),*and, "No set-off shall be filed after ninety days from the entry of the action, except by leave of court and upon payment of costs * * *" (rule 22 of the superior court). 78 N.H. 691, 692. These rules are "consistent with the laws" (P.L. c. 316, §7; Carr v. Adams, 70 N.H. 622, 45 A. 1084), and their enforcement rests in the sound discretion of the trial court. Corbett v. Norcross, 20 N.H. 366, 369; Noyes v. Edgerly, 71 N.H. 500, 502, 53 A. 311; Hutchinson v. Railway, 73 N.H. 271, 283, 60 A. 1011; 2 Hening's Digest, 1402.

Since the defendant did not ask leave to file its special plea until three years after the entry of the plaintiff's action and until more than six years after some, if not all, of the alleged counter-indebtedness had accrued (see 37 C.J. 805), it can scarcely be said that the presiding justice exceeded the limits of his discretion in rejecting the answer. Moreover, it is doubtful if the defendant would have been entitled to prove as a counterclaim certain of the items included therein even if the answer had been seasonably filed.

A counterclaim "other than a debt or demand which is the subject of set-off or recoupment is not known to the common law, and does not here obtain by statute." Derry Loan & Discount Co. v. Falconer, 84 N.H. 450, 454, 152 A. 427, 430. Recoup ment is available to a defendant only when the demands of both parties arise out of the same contract or transaction, and under the statute of set-off (P.L. c. 335, § § 7-13), a claim for unliquidated damages cannot be maintained. Arcadia Knitting Mills v. Elliott Mfg. Company, 89 N.H., 195 A.

681. The nonresidence of the plaintiff is not alleged, and...