Summary
In Cole v. Colburn, 61 N.H. 499, it was held, that in an action on the case for deceit in an exchange of chattels, there may be a recoupment of the defendant's damages caused by the plaintiff's breach of warranty.
Summary of this case from Davidson v. WheelerOpinion
Decided December, 1881.
In an action on the case for deceit in an exchange of chattels, there may be a recoupment of the defendant's damages caused by the plaintiff's breach of warranty.
CASE, for deceit in the exchange of the defendant's horse for the plaintiff's horse and carriage. Plea, the general issue, with a brief statement that by the contract no price was put on any of the property; and that the plaintiff warranted his horse, and by breach of the warranty (fully set forth in pleading as a part of the exchange) the defendant was damaged to the amount of $60. Facts found by a referee. In the exchange there was fraudulent deceit on the part of the defendant, as alleged in the declaration, and a breach of warranty on the part of the plaintiff, as alleged in the brief statement; and the damages caused by the breach of warranty are equal to those caused by the deceit.
W. A. Flanders, for the plaintiff.
J. C. Story and Shirley Carr, for the defendant. The value of each article of the exchanged property was properly proved. Fisk v. Hicks, 31 N.H. 535. The damages should be recouped. Carey v. Guillow, 105 Mass. 18; Mixer v. Coburn, 11 Met. 559, 561; Britton v. Turner, 6 N.H. 481; Horn v. Batchelder, 41 N.H. 86; Flanders v. Putney, 58 N.H. 358, Eastman v. Thayer, 60 N.H. 575, 576; Beecker v. Vrooman, 13 Johns. 302; Reab v. McAlister, 8 Wend. 109; Nichols v. Townsend, 7 Hun 375; Springer v. Dwyer, 58 Barb. 189; Starbird v. Barrons, 43 N.Y. 200; Conor v. Dempsey, 49 N.Y. 665; Allaire v. Whitney, 1 Hill 484 — S.C., 4 Denio 554; Abbott Trial Ev. 335, s. 55; Avery v. Brown., 31 Conn. 398; Breese v. McCann, 52 Vt. 498; Basten v. Butter, 7 East 479; Street v. Blay, 2 B. Ad. 456; Sedg. Dam. 428-451.
Damages are recouped to avoid a useless multiplication of suits; and a sound rule of set-off cannot be constructed upon the mere form of action. Two suits between these parties are not necessary for balancing the equal damages accruing from the single contract of exchange, and duly set forth in pleading. The defendant's judgment for costs will conclude the controversy by a clause of recoupment.
Judgment for the defendant.
STANLEY, J., did not sit: the others concurred.