Chicago Legal News Co. v. Browne

McAllister, J. The matters set up in the special pleas are to be regarded as the basis of recoupment of damages, and is in the nature of a cross-action, the damages to be applied by way of extinguishing or reducing the plaintiff’s demand. The rule is well settled in this State and in many others, that if the demands of both parties arise out of the same contract or transaction, the defendant is allowed to recoup, although the damages on both sides may be unliquidated. If the plaintiff sue on one part of a contract as to which there are mutual stipulations made at the same time, and relating to the same subject-matter, the defendant may recoup his damages arising from the breach of another part; and this is so whether the different parts be contained in one instrument or several, or where one part is in writing and the other verbal, or whether the damages are liquidated or not. Batterman v. Pierce, 3 Hill 171; Ives v. VanEpps v. Harrison, 5 Hill 63; Barber v. Rose, Ib. 76; Whitbeck v. Skinner, 7 Hill 53; Nichols v. Dusenbury, 2 N. Y. 283; Mayor v. Mabie, 13 N. Y. 151; Myers v. Burns, 35 N. Y. 269; Taylor’s Landlord & Ten. Sec. 374. In Streeter v. Streeter, 43 Ill. 155, it was held that damages for a tort might be recouped in an action upon contract if they relate to the same subject-matter as that to which the suit on the contract is brought. Burroughs v. Clancey, 53 Ill. 30, is to the same effect. Wright v. Lattin, 38 Ill. 293. Appellee insists that the matter of the plea is immaterial, and the questions raised by appellant as to plaintiff’s instructions should be disregarded. But the plaintiff, by taking issue upon portions of the plea has made them material. Streeter v. Streeter, supra, 160. But we think it a proper case for the application of the doctrine of recoupment. The court instructed the jury for plaintiff, that in order to allow defendant any set-off or recoupment against the plaintiff’s claim they must be satisfied from the evidence that the lessor, Edmund L. Davison, leased the room occupied as a saloon by Everts. This was erroneous. The second plea avers that Davison leased the premises known and numbered 147 and 149 Fifth avenue, near to the premises in the declaration mentioned, for the sale of intoxicating liquors, to be retailed in quantities less than one gallon. This averment is in no respect traversed by the replications. It is, therefore, admitted by the record; because it is a fundamental rule in pleading that a material fact asserted on one side and not denied on the other, is admitted. Simmons v. Jenkins, 76 Ill. 482, and cases there cited. The plea did not aver to whom he rented the said premises for that purpose, nor was it necessary that it should. The instruction improperly assumes that some room was occupied as a saloon, by Everts. The court further instructed for plaintiff that, “ In considering the question of allowing exemplary damages, it is the duty of the jury to carefully consider and weigh all of the facts and circumstances detailed in the evidence, and to give or refuse to ’ give exemplary damages, as they find, or fail to find in the evidence, acts of bad faith or wrong-doing.” The plea avers that before and at the time of the demise from Davison to defendant, the former faithfully promised that he would not permit intoxicating liquors to be sold on the then vacant portions of said premises, of which he claimed to be the owner and to have the control. And it is further averred in the pitea that he willfully, wickedly and knowingly permitted such liquors to be sold there. There is no traverse in and by the replications of either of these averments. Being material, they were consequently admitted on the record, as well as the fact that he leased the premises for the purpose of the sale, by retail, of intoxicating liquors. Substantially, the facts admitted of record were, the promise by the lessor that he would not permit the contiguous premises to be used for the sale of intoxicating liquors, made as an inducement to defendant’s leasing the premises described in the declaration; then a breach of that promise by leasing the contiguous premises for the sale, at retail, of intoxicating liquors, and willfully, wickedly and knowingly, permitting them to be so used. If the defendant proved any actual injury to its business in consequence, it was entitled to punitive damages under the admitted facts, and the jury should have been so instructed. In the light of these admitted facts, the third instruction for plaintiff was erroneous, in telling’ the jury they “.must act on the evidence, which convinces them not only that damage was sustained by defendant in the manner specified in other instructions of the court, but of the amount or extent of that damage, so that the jury can estimate the same definitely in dollars and cents.” The act complained of by defendant was, as the case stood, to be regarded by the jury not- only as a wrongful but maliciously done. In such a case, the law is not so nice or exact in its solicitude for the wrong-doer, as to require the damages to be definitely shown in dollars and cents. “ In regard to cases of deliberate or malicious wrong, we have already seen that the law applies very liberal relief. And in cases of reckless or malicious acts injurious to others, even where exemplary damages are not claimed, the party in the wrong is often made answerable for consequences very remote from the original act.” Sedg. on Damages, 79. In such a case as this, there would be some elements of damages which it would be impossible to prove definitely in dollars and cents. If it was one of the consequences that -he defendant’s enjoyment of the premises demised to it by the plaintiff was materially prejudiced, then part of the damages might be the difference between the value of the use of such demised premises during the continuance of the nuisance with or without the same; and aside from that, any special damage to defendant’s business as a natural consequence. In a case even where there is no element of malice for maintaining a nuisance, the court said: “ But beyond the injury to the pecuniary value of the premises, are the injury and annoyance to the plaintiff while occupying them, and which cannot be gauged by any definite rule.” I. C. R. R. Co. v. Grabill, 50 Ill. 246. For the errors in the instructions, the judgment of the court below will be reversed and the cause remanded. Reversed and remanded.