Greer v. Malone-Beall Co.

MAYFIELD, J. This was an action of assumpsit, for the breach of a contract which is in effect set out in the complaint. It was alleged in the complaint that, as a part of the contract sued upon, the plaintiff was to pay the defendant “all losses, to it, by reason of the failure of any of plaintiff’s said customers to pay defendant for the guano and merchandise sold by defendant to them; * * * that defendant was to furnish him by December 1, 1906, a statement showing the amount due by each of his said former customers to [605] defendant on their unpaid accounts, on the rendering of which statement plaintiff was to make said settlement.” To the count declaring for a breach of this contract the defendant filed a special plea, which is denominated, in the plea, and by counsel for plaintiff, a “plea of set-off,” but which was more properly a plea of recoupment, for the reason that the damages claimed were alleged to be the result of the breach of the contract sued upon and described in the complaint. No objection, however, was taken to the plea on this account. The plea evidently was intended to claim damages for the failure of the plaintiff to pay certain losses which the defendant sustained by reason of the failure of certain of the plaintiff’s customers to pay defendant for guano and merchandise sold by defendant to them, as provided in the contract referred to in the complaint. A plea of set-off or of recoupment should be' as certain, as to the damages sought to be set off or recouped, as if it were an original action brought by the defendant against the plaintiff for that particular claim or demand. Such pleas are treated as cross-actions, and are required to show a cause of action against the plaintiff. Such pleas are not required to deny the plaintiff’s right of action, nor are they required to confess and avoid it; but they set up a right of the defendant to recover of the plaintiff damages for the cause of action set up in the plea, and offer to set it, off against the plaintiff’s claim or demand against the defendant, and if in excess they ask for a judgment over against the plaintiff for the excess. It is quite evident that the plea refers to a breach on the part of the plaintiff of the identical provision of the contract mentioned in the complaint, and which we set out as quoted above. This being true, there can be no liability on the part of the plaintiff to pay the [606] defendant the amount claimed to be due until the defendant has furnished to the plaintiff a statement showing the amount due by each of his said former customers, to the defendant, on their unpaid accounts. The plea therefore fails to show that defendant had performed this part of the contract, which was a condition precedent to the liability of the plaintiff to pay the defendant said amount. The third ground of the demurrer took this point, and we are of the opinion that the trial court erred in overruling the demurrer. It is therefore unnecessary to consider the ruling upon that demurrer to the replication. For this error the judgment of the court is reversed, and the. cause remanded. Reversed and remanded. Dowdell, C. J., and Anderson and de G-raffenried, JJ., concur.