Thompson v. Congdon , 43 Vt. 396 ( 1871 )

The opinion of the court was delivered by

Peck, J.

The general objection in the county court to the evidence offered by the defendant in support of his item for “ use of carriage to Woodstock, $40,” under his plea in offset, without specifying the ground, of objection, uuder which item the defendant recovered not only for the ordinary use but for damage to the carriage caused by the negligence of the plaintiff in the use of the carriage under the contract of hire, does not entitle the plaintiff to insist in this court that the count or plea in offset should have been special and not general; although the plaintiff excepted to the ruling of the court admitting the evidence. The attention of the county court not having been called to any such question, it is too late to raise the question for the first time in this court. This point is too well settled, and has been too often and too recently decided, to require or justify the spending of any time in repeating the reasons for a rule so obviously just and salutary.

The remaining question is whether the defendant’s claim against the plaintiff for the use of the carriage, including damage done to it by the negligence of the plaintiff while in the use. of it under the contract of hire, can be recovered under a plea in offset in assumpsit. This question must be decided the same as if the plea were special, setting forth the claim in its full extent specifically, the use, and the damage resulting from the negligence. Had this defendant brought his action of assumpsit against this plaintiff for the use of the carriage under the contract of hire, it is evident that he might have included, and recovered for, the breach of the implied undertaking of the defendant to use the property with due care and prudence ; and thus avoided the necessity of two actions upon one and the same contract. As the whole may be recovered in an action of assumpsit, the same right exists to recover the whole under a plea in assumpsit in offset, under the liberal construction which our statute of offsets has received. The whole claim is a liability “ on contract express or implied,” and that is sufficient to bring it within the statute. Keyes v. West. Vt. Slate Co., 34 Vt., 81, is an authority to this extent, and is in harmony with the previously established practical construction of the statute. Where mutual demands exist between two parties, the right to offset one against the other under the statute does not depend on the question which party brings the suit. So far as the right to plead in offset depends on the kind of action pending, the right exists whenever the plaintiff sues “in any action founded' on contract express or implied.” Gen. St., ch. 39, § 1. If the defendant in this case had sued this plaintiff in an action of assumpsit on his implied promise to exercise proper care and prudence in the use of the carriage under his contract of hire, to recover for the injury caused to it by the'plaintiff’s negligence, the action would have been “ upon a contract express or impliedand hence this plaintiff in such action could have pleaded his note in offset, for the recovery of which he brought this suit. If in such action this plaintiff might legally offset his demand, it follows that he having sued his demand, the defendant" in this action has the same right to offset his demand against it, as the right of offset is mutual. The law does not favor a multiplicity of suits, and one of the purposes of the statute of offset is to lessen their number. It would be more nice than sensible or sound to allow the defendant to recover in this case what would be a reasonable compensation for the proper use of the carriage, and turn him over to another action to recover for the injury to it caused by the imprudence of the plaintiff in that use under the same contract of hire.

Judgment affirmed.