Dalton v. Bunn & Allison , 152 Ala. 577 ( 1907 )

DOWDELL, J.

Since the remandment of this canse on the former appeal — Dalton v. Bunn & Allison, 137 Ala. 175, the defendant has filed additional special pleas as shown by the record, numbered 7, 8, 9, 10 and 11. These pleas profess on their face and are so intended to he, pleas of recoupment. Demurrers were interposed to each of said pleas, and were by the court sustained as to all of them except the 11th plea. This action of the court constitutes the basis of assignments of error numbered two, three, four and five. The first assignment of error on the record relates to the ruling of the court on demurrers to pleas 2, 3, 4 and 5. This assignment is not, however, insisted on in argument. Moreover, these pleas were considered on former appeal and were then condemned.

Special pleas 7, 8, 9 and 10, were each faulty .and subject to the demurrer. Neither of these pleas aver that the contract and the breach of which is set up by way of recoupment, arose from," or in any way related to the transaction on which the plaintiff’s cause of action is based.

As was said in Washington v. Timberlake, 74 Ala 259: “Recoupment applies when the abatement claimed springs out of the very contract or transaction on which the recovery is sought. It is entirely unlike set-off, which is in the nature of a cross-action, and may rest on independent legal demand, if that demand be of a class not sounding in damages merely.” See also Grisham v. Bodman, 111 Ala. 194. The court committed no error in sustaining the demurrers to the several special pleas.

The ruling of the court on the demurrers to replications three and four is not assigned as error, and hence, cannot be considered. Rejoinder numbered two was properly stricken on motion. It purported to answer replications three and four. The matter set up in this rejoinder was irrelevant and in no sense an answer to the replication. — Section 3286, Code of 1896.

The only other assignment of error insisted on, except the one that the court erred in rendering judgment for the plaintiff, is the action of the court in excluding the testimony of Dalton relative to his contract with the U. S. Government. This evidence, under the issues, was immaterial, and the court committed no reversible error in its exclusion.

The defendant’s plea averred that the plaintiffs entered into their contract with the defendant with knowledge at the time of the defendant’s contract with the U. S., and the theory of defendant’s case on this line was that the contract with the plaintiffs was entered into and made with reference to defendant’s contract Avith the U. S. The evidence excluded tended only to shoAV that plaintiffs were informed of the defendant’s contract Avith the U. S., subsequent to the making of the contract betAveen plaintiffs and defendant.

We find no reversible error in the record and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Anderson and McOleulan, JJ., concurring.