Tomasello, Jr. v. Walton ( 1930 )

With the greatest deference to the opinion of my fellows in this case I venture to dissent from the view expressed in the majority opinion.

My objection to the conclusion reached rests upon the following principles. The declaration as to three of its counts consists of common counts for money lent, money paid by plaintiff for the defendant and money received by the defendant for the plaintiff's use. The third count consists of a claim for interest upon the sums of money claimed which constitute the basis of the three preceding counts. That count of the declaration is superfluous because if the plaintiff recovered upon those counts he would be entitled to the recovery of interest from the date it appeared that the obligation to pay existed. The fourth count is an action of tort for the conversion of the plaintiff's goods. Here are two causes of action, one arisingex contractu and the other ex delicto, joined in the same action which may be permissible under Section 4225 Comp. Gen. Laws 1927. The action on the common counts is in the nature of an equitable remedy.

Under the old common law the plaintiff had a right to dismiss his action and take a non-suit at any time before verdict, but the remedy of set-off or counter claim was unknown in the common law therefore the question presented in this case, which is: may the plaintiff at any time before the verdict dismiss his action where the defendant under the authority of a statute had set up or pleaded against the plaintiff a set-off or counter claim where such dismissal would operate to the defendant's prejudice by taking from him the right to pursue his action against the plaintiff which under the statute the defendant was permitted to engraft upon the plaintiff's action, could never have arisen under the common law. It follows therefore that the old common law rule has no application whatsoever under the new conditions growing out of the right secured by statute except in so far as the plaintiff's control over his own cause of action is concerned. The rule in equity would not permit such action by the complainant.

Now the common law action of general assumpsit is in its nature equitable. It grows out of an obligation which the law by way of equitable considerations imposes upon the defendant under the conditions set up in the common counts.

It follows that the rule announced in Buffington v. Quackenboss, 5 Fla. 196, and followed in Clarke v. Wall, 5 Fla. 476 and West Coast Fruit Company v. Hackney, 98 Fla. 382, 123 So. R. 758, rests upon the reasoning which the court advanced based exclusively upon the common law doctrine that the plaintiff may at any time before verdict take a non-suit and dismissal of his cause. The reasoning upon which the rule rests I submit is not cogent.

To quote from the language used by the court in Buffington v. Quackenboss, supra. "The supposed hardship which might result from the defendant's set-off being barred by the statute of limitations, in the event of the plaintiff discontinuing his suit, cannot affect the plaintiff's rights. To plead the set-off is a right conferred by statute which the defendant may or may not avail himself of, at his election. And when pled, the defendant may withdraw his set-off at any time before the jury retire. It is very obvious, that to deny a plaintiff the right to discontinue his action, by reason of a set-off being pled, would, in effect, be to rescind the rule and destroy the right altogether, for in any case, it would be in the power of a defendant, by pleading a set-off, whether real or fictitious, to force the plaintiff to a trial."

Now, there are several fallacies in this reasoning which I will undertake to point out. The "plaintiff's rights" as to a discontinuance of his action were rights existing at common law under which the right now existing under statute to plead a set-off, that is to graft a new action upon the plaintiff's action, did not exist. The reasoning does not point out that the "plaintiff's rights" under the statute permitting the defendant to plead a set-off are the same as they existed at common law. Again if the plaintiff dismisses his action without prejudice to the defendant's right to maintain his counter action of set-off, it in no wise impairs the "plaintiff's right" at common law to discontinue his action.

Again, it by no means follows that if the defendant withdraws his plea or new action of set-off, it in any manner affects the plaintiff's right to pursue his action to final judgment. If any effect results it is beneficial to the plaintiff who in such case is not put to the necessity of defending against the defendant's set-off.

The illustration as used in the opinion is not reciprocal, for it cannot be argued that because the defendant may withdraw his set-off which act will not affect plaintiff's action that the plaintiff therefore may withdraw his action and thus defeat the defendant's action.

On the contrary it is more logical to say that if the defendant may withdraw his set-off and not affect the plaintiff's action existing at common law the plaintiff may withdraw his action and not affect the defendant's actionsecured to him by statute. Again, the setting up of a set-off "real or fictitious" does not force the plaintiff to a trial on his own action because the plea of set-off admits the existence of the plaintiff's right to recover on the action brought by him and only requires him to defend the new or statutory action of set-off.

A plea of set-off is one of confession and avoidance. It does not controvert the plaintiff's cause of action against him but except as otherwise provided by statute admits it and sets up a cause of action in himself to extinguish it in whole or in part and to entitle him to an affirmative judgment for any excess. 23 Stand. Ency. Procedure 803.

The English statute of set-off did not permit an affirmative recovery against the plaintiff. Under the statutes in this country the defendant may in set-off liquidate the whole or part of plaintiff's claim and also have judgment for whatever excess he proves over plaintiff's demand. 23 Stand. Ency. Procedure 806.

This feature of set-off which characterizes the rule in this State makes it clear that a set-off is a cross action in which the defendant may have an affirmative judgment against the plaintiff which at common law could not be obtained except in an independent action against him.

The Buffington-Quackenboss case, supra, was decided more than seventy-five years ago when the facilities for commercial transactions were incomparable to those of the present day. There were difficulties almost insurmountable to contractual relations in many cases when today it is a matter of a postage stamp, a telegraphic or telephonic message and the agreement is concluded in a few hours or days where in 1853 it might have required months or was considered altogether impracticable. Today men of different states which may be separated by thousands of miles of distance, even of different nations, enter into contractual relations almost with the facility with which, during the time when Mr. Justice SEMMES wrote, men living in the same village could assume mutual obligations.

The law is not an inflexible rule, a mere arbitrary static rule, it adjusts itself to conditions as progress in human affairs may require, not to the extent of changing a principle to meet a condition but at least of extending or modifying a court's interpretation of its meaning and application. Milwaukee v. Milwaukee Elec. R. L. Co., 173 Wis. 400, text 486, 180 N.W.R. 339; Moss Point Lumber Co. v. Harrison County,89 Miss. 448, 42 So. R. 290. The common law itself is an evidence of the law's flexibility.

That is all that exists in the Buffington-Quackenboss case, a court's construction of the effect of a statute in the light of a common law right which existed before the statute came into existence.

That this proposition is true is evidenced by overwhelming authority in support of the doctrine that a set-off is in the nature of a cross action which when set up pleaded or begun by the defendant whom the plaintiff has brought into court secures to the defendant the right to pursue such action to final judgment against the plaintiff for the excess of defendant's claim over the plaintiff's demand, and this right which the statute secures to a defendant may not be defeated by the plaintiff in exercising a right which he had at common law where the right to the cross action was unknown. That the right to a non-suit exists as at common law but under statutes of set-off where the defendant pleads a set-off or counterclaim the court may restrain the full exercise of it to meet the requirements of reasonableness and justness in the exercise of the right, see McKesson v. Mendenhall, 64 N.C. 502; Hutchinson v. Paige, 67 Wis. 206, 29 N.W.R. 908; Clark v. Hundley, 65 Cal. 96, 3 Pac. R. 131; Mott v. Mott, 82 Cal. 413, 22 Pac. R. 1140; Jackson v. Roane, 96 Ga. 40, 23 So. E. R. 118; Boone v. Bush,91 Tenn. 29; See also 6 Ency. Pl. Pr. 849 and authorities cited; Wilson v. Exchange Bank, 122 Ga. 495, 50 So. E. R. 357, 69 L.R.A. 97; Watts v. Sweeney, 127 Ind. 116, 26 N.E.R. 680; Miles v. Boyle, 26 S.D. 211, 128 N.W.R. 123, Ann. Cas. 1913 A 1077; 9 Rawle C. L. 203.

The reasonableness and soundness of the modern rule may be exemplified by many illustrations. It is quite certain, however, that the question is not one which calls for action by the legislature. The rule announced by this court in the year 1853 and supported by reasoning not at all convincing did not become such a rule of conduct as to require legislative interference to correct. It was merely a court interpretation of a statute which did not and cannot become a rule of property but a rule which in the light of later times may be shown to be inequitable and unjust requiring a different interpretation.

Under the circumstances shown by the defendant's motion and affidavit I think the order granting a dismissal of the defendant's counter action or cross claim was an abuse of discretion and should be reversed.