Waterman v. Clark

• Decision Date: 31 January 1875
• Citation: 76 Ill. 428,1875 WL 8221
• Parties: ALFRED M. WATERMANv.A. JUDSON CLARK et al.
• Court: Illinois Supreme Court

76 Ill. 428

1875 WL 8221 (Ill.)

ALFRED M. WATERMAN

v.A. JUDSON CLARK et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Hancock county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. MARSH & MARSH, for the appellant.

Mr. W. C. HOOKER, and Mr. G. EDMUNDS, Jr., for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action upon a promissory note, of which the following is a copy, to wit:

+------------------------------------+
                ¦$124.49¦WARSAW, ILL., Feb. 16, 1870.¦
                +------------------------------------+
                

Three months after date, we, or either of us, promise to pay to the order of A. M. Waterman, $124.49, for value received, and with interest at the rate of ten per cent per annum from date.

A. J. CLARK,

WM. N. MCCALL.

The error assigned is, the overruling of a demurrer to defendants' fourth plea.

The plea, in substance, was, that Waterman, the plaintiff, on the first day of December, 1869, owned and was running a distillery, and took certain cattle and hogs of defendant Clark to take care of, feed and fatten, at plaintiff's distillery, at a certain price per head per month; that after plaintiff so having the stock for three months, Clark, finding that they were not being fattened, but had been and were being greatly injured and damaged for want of proper care and food at the distillery, demanded a return of the stock, which the plaintiff refused to deliver to Clark, unless he would execute the note in suit; and thereupon the defendants, protesting that there was no consideration for the note, and to prevent further injury and damage to the stock by plaintiff's detention thereof, executed the note, Clark as principal and McCall as surety; that the stock, while in the possession of plaintiff, were not taken good care of, nor were they fattened, but were injured and damaged by the negligence of plaintiff, and by reason of his feeding of the same with improper and unwholesome food, in the sum of $300, which defendants claimed they were entitled to recoup to the amount of the note.

The objections taken to the plea are--

First. That the matter, in respect to which the damages are sought to be recouped, does not arise between the parties to the record, it arising between the plaintiff and one of the defendants, not both--that the same rule should apply to recoupment as to set-off. The objection would be valid if set-off and recoupment were governed by the same rules. But such is not the case; they depend on quite different principles. In the case of recoupment, a claim originating in contract may be set up against one founded in tort, and vice versa. Streeter v. Streeter, 43 Ill 197. The cross demand must proceed from the same subject matter as the plaintiff's right of action, and the defendant can not, as in the case of a set-off, recover any excess in his favor. He uses his claim in...