Ewing & Gaines v. Shaw & Co. , 83 Ala. 333 ( 1887 )

SOMEBYILLE, J.

— The act of January 25th, 1879 (Acts 1878-79, p. 154), changes the mode of procedure, as it' purports in its title to do, in all cases where a counter claim is interposed by a defendant, by way of recoupment of damages, although it does not add to or enlarge the class of demands which may be brought in under the plea of recoupment. — Martin v. Brown, 75 Ala. 442; Code, 1886, §2683. This defense authorizes the recovery of any damages sustained by the defendant, which grow out of, or are connected with the matters set forth in the plaintiff’s complaint, and in breach of the contract upon which his suit is founded, or in violation of any duty imposed by the contract. Without the aid of this new statute, the defendant was not entitled to have judgment against the plaintiff, for any excess of his damages in recoupment over the plaintiff’s claim. He could only reduce or abate the plaintiff’s claim, to the extent of his own counter-claim. As the statute now stands, under a proper construction o£ it, lie is entitled to either one or the other of these rights, according to the amount of his demand in recoupment; and if the one claim just equals the other, the defendant is necessarily entitled to have judgment in his favor, at least for costs of suit.

The plea of recoupment filed by defendants was not subject to the objections taken to it by the plaintiff’s demurrer, which was properly overruled. It was neither double, uncertain, or otherwise insufficient. It is, moreover; no valid objection to a plea in bar, under our system of pleading, that it is double.

The charge given by the court, at the request of the defendant, was unquestionably correct. The principal, or master, is liable for the damages resulting from the negligence or want of skill of his agent or servant, in the scope of the employment or business, .which embraces everything done by the express or implied sanction of the principal. The averments of the complaint are conclusive against the plaintiffs of the fact that Bailey was their agent, and that he hired the wagon, horses and driver, by their authority, for the purposes mentioned. The charge in question can not be criticised, therefore, on the ground that it designates Bailey as the agent of the plaintiffs. This is an undisputed, and indisputable fact in the case. If he knew, or was informed, that the stream, in which defendants’ horse was drowned, was swimming, and, notwithstanding this information, directed the driver to move the wagon and team into it, this was negligence in the course of the agent’s employment, such as would render the plaintiffs liable for any damages resulting from the driver’s following his direction. This is, in substance, the charge of the court.

Judgment affirmed.