Opinion
Decided June, 1884.
Evidence in recoupment of damages is not admissible under the general issue.
TROVER, for a lot of timber. Plea, the general issue. Facts found by the court. In the fall of 1880 the plaintiff bargained with the defendant for certain timber then standing on her land, with the right to remove the same as fast as it was cut, yarded, surveyed, and paid for. Under the contract, timber was cut and yarded by the plaintiff, amounting to about $490, which was surveyed and paid for in full, and was nearly but not quite all taken away in the winter of 1880-'81. The same winter and spring the plaintiff cut and yarded another lot, which was surveyed, amounting to $198.64. For this lot the plaintiff never paid nor offered to pay. In September, 1882, he sent his teams to haul away what remained of the first lot, but was prevented by the defendant, who claimed that all of that lot had been hauled away. It is for this timber that this suit is brought. The timber had not all been taken away, and the plaintiff's damages therefor are assessed at $52.50.
The last lot of timber was never taken away. It was surveyed March 31, 1881. In the fall of 1881 the defendant notified the plaintiff that it was spoiling, and to come and pay for it and remove it; and that if he did not, she would have to cut it up into wood. The plaintiff refusing to pay for it, she cut it up into cord wood in the winter of 1881-'82, and sold it at $4 a cord, amounting to $66; and the loss on this lot of timber was $132.64, which the defendant claims to recoup in this suit. The defendant's damages exceeding the plaintiff's, the court found the defendant not guilty, and the plaintiff excepted.
Barnard Barnard, for the plaintiff.
Shirley Stone, for the defendant, cited Horn v. Batchelder, 41 N.H. 86; Britton v. Turner, 6 N.H. 481; Flanders v. Putney, 58 N.H. 358; Carey v. Guillow, 105 Mass. 18; Campbell v. Somerville, 114 Mass. 334.
The defendant having pleaded the general issue only, the evidence excepted to was inadmissible, both upon general principles and under all the rules of pleading; and it is therefore properly held, in cases of this description, that the right of recoupment cannot be exercised without due notice to the plaintiff. Steamboat Wellsville v. Geisse, 3 Ohio St. 333; Runyan v. Nichols, 11 Johns. 547; Beecker v. Vrooman, 13 Johns. 302; Ives v. Van Epps, 22 Wend. 155; Mayor v. Trowbridge, 5 Hill 71; Barber v. Rose, 5 Hill 76; Nichols v. Dusenbury, 2 N.Y. 283; Keyes v. Slate Co., 34 Vt. 81; Hogg v. Cardwell, 4 Sneed 151; Basten v. Butter, 7 East 479; 7 Wait Act. Def. 545.
To hold otherwise would obviously result in surprise and injustice, and constitute so entire an emancipation from all rules of pleading, that neither the parties nor the court would be able, in this growing class of cases, definitely to ascertain from the record either the matter actually in controversy, or what testimony would be relevant and what would not, in its decision. In a word, it would sanction a mode of proceeding fraught only with absurdity and evil.
Exceptions sustained.
SMITH, J., did not sit: the others concurred.