Hawthorne v. Murray

Citations

• 26 Del. 349
• 3 Boyce 349
• 84 A. 5
• 1912 Del. LEXIS 39

Syllabus

<p>1. Mechanics’ Liens—Nature of Action.</p> <p>An action to enforce a mechanic’s lien is in the nature of an action of assumpsit for the price and value of work, labor, and material furnished by the claimant.</p> <p>2. Mechanics’ Liens—Recovery.</p> <p>Where a considerable portion of the materials furnished under a building contract are not of the quality and kind specified, the materialman, in an action to enforce his lien, may still recover the reasonable worth of such material.</p> <p>3. Set-Off and Counterclaim—“Recoupment”.</p> <p>“Recoupment” is the right of a defendant in the same action to claim damages from the plaintiff for some cross-obligation or violation of duty relating to the contract sued on.</p> <p>4. Pleading—Recoupment—Notice.</p> <p>Under a notice of recoupment, the defendant may prove any damages growing out of the transaction between them.</p> <p>5. Evidence—Recoupment—Burden of Proof.</p> <p>The burden is on the defendant to prove matters set up in the notice of recoupment.</p> <p>6. Set-Off and Counterclaim—Recoupment—Extent of Recovery.</p> <p>The defense of recoupment goes only to the reduction of plaintiff's demand, and the defendant cannot recover for any balance or excess.</p> <p>7. Set-Off and Counterclaim—Building'Contracts—Fraud—Estoppel.</p> <p>Where plaintiff contracts to construct a building of certain material, and by false representations induces the defendant to accept inferior material, such acceptance does not prevent the defendant from obtaining recoupment in the plaintiff’s action for the contract price.</p> <p>8. Contracts—Building Contracts—Amount of Recovery.</p> <p>Where a building contractor furnishes work, labor, and material of use to the owner, though inferior to that agreed upon, he may recover their reasonable worth subject to a deduction for damages suffered by the owner from the noncompliance with the contract.</p> <p>9. Evidence—Jury—Deliberation.</p> <p>Where the evidence is conflicting, the jury should recon