State v. Arkansas Brick & Manufacturing Co.

• Decision Date: 06 March 1911
• Citation: 135 S.W. 843,98 Ark. 125
• Parties: STATE v. ARKANSAS BRICK & MANUFACTURING COMPANY
• Court: Arkansas Supreme Court

135 S.W. 843

98 Ark. 125

STATE v. ARKANSAS BRICK & MANUFACTURING COMPANY

Supreme Court of Arkansas

March 6, 1911

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT BY THE COURT.

This action was instituted by the State to recover from the defendant $ 17,726.55, claimed to be due from the defendant for convict labor.

On the 31st day of July, 1899, the State entered into a contract with the defendant, by which it agreed, for a term of ten years, beginning January 1, 1900, to furnish the defendant three hundred able-bodied men per day on demand. For this labor the defendant undertook to pay 50 cents per day for each convict. After the expiration of the ten years, a number of convicts were allowed to remain with the defendant for a short time, and the complaint states that, of the amount sued for, $ 12,898.65 was for a balance due for convicts furnished during the life of the contract, and $ 4,827.90 for such as were furnished after the expiration of the ten years mentioned in the contract. The charge by the State for the first of these items was at the contract price of fifty cents per day, but for the second item the charge was for the reasonable value of the services of the convicts.

The answer admits that after the 1st day of January, 1909, the date of the expiration of the contract, the labor of certain convicts was furnished to the defendant by the plaintiff; and the answer alleges that this labor was furnished under and pursuant to the contract, or as contended on the trial to make up in part for the failure to furnish the full number. The answer also denies the indebtedness, and by a counterclaim sets up damages sustained by reason of the failure of the State to furnish three hundred convicts per day. The damages claimed by the defendant in the counterclaim exceed the amount claimed by the State in the original complaint.

During the ten years, and until the last month or two before the expiration of the contract, the defendant paid the State each month what it owed for the convicts furnished. It is also shown that during the ten years the defendant, from time to time, demanded that the State should perform its undertaking and furnish convicts to the number of three hundred per day.

Decree affirmed.

Hal L Norwood, Attorney General, and J. H. Harrod, F. T. Vaughan and George Vaughan, for appellant.

The matter set up in defendant's answer does not constitute a cause of action. Kirby's Dig. § 6098; 30 Ark. 50; 71 Ark. 408. The defense set up is a counterclaim. 52 Ark. 117; 56 Ark. 450; 60 Ark. 151. And the State cannot be sued. 57 Ark. 474; 32 Ark. 45; 56 Ark. 365.

Coleman & Lewis, for appellee.

The suit should have been dismissed. Kirby's Dig., § 7779; 84 Ark. 537; 136 F. 232; 85 P. 417; 57 Tex. 314; 56 Tex. 493. When a contract is broken by both parties thereto the damages sustained by one may be recouped in an action brought thereon by the other. 8 Mich. 349; 3 Mich. 382; 20 So. 514; 17 Ark. 245; 22 Ark. 248; 40 Ark. 78; 68 Am. D. 561; 46 Vt. 200; 14 Am. Rep. 620; 12 Ark. 702. The defense may be maintained in this suit. Kirby's Dig. §§ 7784 6101, 6231, 6245, 4682, 6109; 16 Ark. 97; 66 Ark. 93. The defense is not a suit against the State. 9 Bush 716; 54 Miss. 562; 10 Am. St. 715; 106 Ind. 463; 81 Ky. 572; 18 Ga. 658; 45 Ark. 88; 52 Ark. 157.

NORTON, SPECIAL JUDGE. MCCULLOCH, C. J., and FRAUENTHAL, J., concur in part of the judgment and dissent as to part.

OPINION

NORTON, SPECIAL JUDGE, (after stating the facts).

It is not contended on the part of the State that it performed its agreement to furnish the three hundred convicts, but it is insisted for the State that by defendant's course of deal--settling monthly for such number of convicts as it had--the defendant waived its right to full compliance by the State. It is also contended for the State that a cross demand of counterclaim or recoupment cannot be made against the State, as that would, in a sense, be permitting the State to be made a defendant; and it is further contended in behalf of the State that, even if counterclaim or recoupment can be allowed at all in this case, it must be confined to so much of the cause of action as is due for labor furnished under the contract, and that labor furnished after the expiration of the contract is not sufficiently connected with the plaintiff's cause of action to be made subject to the cross demand of counterclaim or recoupment.

The contention on the part of the' State that defendant waived its right to the full number of men mentioned in the contract, we do not find supported by the testimony. While the defendant, with the exceptions mentioned, paid monthly for such convicts as were furnished, it is, on the other hand, proved that it at all times demanded the full number of men from the State. In this respect, as in others, the findings of fact by the chancellor are well supported by the testimony.

The findings of fact by the chancellor include the failure of the State to furnish the convicts as agreed, and a damage sustained by the defendant in a sum in excess of the amount claimed by the State.

With the facts in this way determined, the remaining question is one of applying law.

That a counterclaim could not be maintained against the State for any balance the defendant might be entitled to over and above the amount of the State's claim is conceded. But counsel for the State go further and contend that even to allow recoupment to the amount of the State's claim is equally prohibited.

The right of the State to be held exempt from the recovery of judgments against it is no clearer than the right of a defendant, in a suit by the State, to avail himself of all and every character of defensive pleas, except limitation. ( State v. Morgan, 52 Ark. 150, 12 S.W. 243.) He cannot by a cross action have an affirmative judgment against the State for any excess he may be entitled to over and above the State's claim; but this is the extent of his disadvantage from having dealt with the sovereign.

The law of recoupment requires some consideration, and a distinguishing of it from the idea usually conveyed by the word counterclaim. Counterclaim and recoupment are alike in the sense that each must grow out of, or be connected with, the transaction upon which the plaintiff sues. Recoupment was allowed at common law (Desha v. Robinson, 17 Ark. 228), but a counterclaim was not. Recoupment was considered a defense, and, prior to the adoption of the Code, if the defendant's cross demand against the plaintiff exceeded the plaintiff's demand, the defendant could use his demand in recoupment only by sustaining a loss of the excess. Hence, prior to the Code, the defendant could recover on his cross demand, to the full extent, only by an independent action. The Code, to prevent a multiplicity of suits, provided for the counterclaim, and that the defendant might recover on it, in the same suit, any balance that the plaintiff owed him over and above the plaintiff's demand. The counterclaim thus became an affirmative cross action, which ordinarily will cover all purposes of recoupment, but not always. A right left to the defendant to be worked out through the doctrine of recoupment, which could not be had through a counterclaim, is to use defensively a cause of action which as a counterclaim would be barred by lapse of time. A counterclaim must be an existing cause of action, but recoupment is a right to reduce the plaintiff's claim, and this right exists as long as the plaintiff's cause of action exists. A breach by the plaintiff, though barred as an independent cause of action, continues to exist for defensive purposes available to the defendant, so long as the plaintiff may sue upon any breach by defendant. Williams v. Neely, 134 F. 1; Beecher v. Baldwin, 55 Conn. 419, 12 A. 401; C. Aultman & Co. v. Torrey, 55 Minn. 492, 57 N.W. 211; Wood on Limitations, § 282, (3 ed.); Conner v. Smith, 88 Ala. 300, 7 So. 150; Soudan Planting Co. v. Stevenson, 94 Ark. 599, 128 S.W. 574.

We refer to this right to use barred cross demands, not because the question is involved in this case, but to show the defensive character of the plea of recoupment, and that it is a common-law right which the Code makers could not have intended to abolish or in any wise impair. The whole spirit and plan of the Code was to liberalize the procedure and to extend, instead of curtailing, remedial rights.

If express warrant for recoupment in the letter of the Code should be contended for, it can well be found in the right to plead, "new matter constituting a defense." Kirby's Digest, § 6098, 3 subdivision.

The question which has most concerned the court is whether or not there is sufficient connection between the two claims made by the State--one under the contract, the other for labor furnished after the date of its expiration--to make both subject to the defendant's plea of recoupment.

The testimony shows that the convicts were simply allowed to remain. It is not claimed that any new contract was made about them; and the defendant considered they were allowed to remain to make up some of the State's deficit in men furnished. The chancellor found that all the men furnished by the State were furnished under the contract.

A majority of the court are of the opinion that the State's claim for labor furnished after the expiration of the contract cannot be separated from what had gone before, in a way to limit the defendant's plea of recoupment, which was sufficiently "connected with the subject of the action." Wyman v. Herard, (Okla.) 9 Okla. 35, 59 P. 1009; Tinsley v. Tinsley, 54 Ky. 454, 15 B. Mon. 454.

The case last cited comes with especial force, as it arose in Kentucky after her adoption of a Code which was...