Koempel v. Shaw

Berry, J. By the Court This is an"appeal from an order striking out a portion of the defendant’s answer. We are of opinion that the Court below erred in its application of the views expressed in Mason and Craig vs. Heyward, 3 Minn., 186, and in Whalon et al. vs. Aldrich, 8 Minn., 348. It is said in those cases that-“a defendant by pleading a counter claim for damages for the breach of a contract which is the subject of the action, admits a claim against him on the part of the plaintiff which he avoids by his counter claim, and by so pleading he tenders an issue upon all the equities existing between him and the plaintiff arising out of the contract, and must abide by that issue whether he be benefited or prejudiced thereby. He cannot after an examination of all the equities under such an issue fall back and claim to defeat any recovery against him on the plea of non-performance of the contract.” Whether the Court in the cases cited expressed its views with the utmost accuracy or .not we need not consider. But -in the case at bar while the answer is certainly not to be commended for neatness or precision, we think the portion stricken out should, have been allowed to remain in the answer, according to the rule laid down in the cases referred to. The only question before us is whether the order striking out was right.’ Putting a liberal construction upon the answer in this case, we think it does not evince an intention on the part of the pleader to rely upon the non perform 493 anee of the special contract set up as a bar to the plaintiff’s recovery, and at the same time claim damages arising from its breach without adjusting all the equities between the parties. On the contrary, while it was necessary to set up the special contract in order that breaches of the same might be 'assigned and damages claimed therefor, the answer on its face-proposes to adjust all the equities between the parties by allowing the plaintiff the value of his work and materials (though performed and furnished under a special contract which has not been completed,) and by claiming damages for its breaches, and the repayment of money ignorantly overpaid by the defendant while the work was in progress. Order reversed.