Harlan v. St. Paul, Minneapolis & Manitoba Railway Co.

Mitchell, J. Plaintiff brought this action to recover for services rendered to defendant as brakeman on its railroad. The defendant, in its answer, set up, “by way of defence and counterclaim,” damages sustained through the negligent performance by plaintiff of the *428 same contract of employment upon which the action is brought. This could be done, independent of any statute, under the common-law doctrine of recoupment. It was well settled, upon common-law principles, that where the defendant has sustained damages by reason of the plaintiff’s non-performance of his part of the agreement sued on, such defendant has the right to abate the plaintiff’s claim by the amount of such damages. 3 Wait, Act. & Def. 610; 7 Wait, Act. & Def. 544. If the defendant can show that the plaintiff himself has violated some stipulation of the same contract sued on, he may recoup his damages arising from such breach, whether they be liquidated or unliquidated. Damages incurred by the defendant through the negligence of the plaintiff in the performance of the contract of employment sued on, might be thus interposed by way of recoupment. Waterman on Set-off, §§ 535, 536. Our statute has extended this right so that now a defendant may plead such damages, not merely in reduction or bar of plaintiff’s claim, but also so that, if the balance be found in his favor, he may have affirmative judgment for the amount against the plaintiff. The court, therefore, erred in striking out the second defence in defendant’s answer. An order striking out an answer being an appealable order, which constitutes a part of the record, need not be excepted to in order to entitle the appellant to have it reviewed. Ely v. Titus, 14 Minn. 93 , (125.) Judgment reversed, and new trial ordered.