Moore v. Speal

Citations

• 29 Del. 101
• 6 Boyce 101
• 97 A. 237
• 1916 Del. LEXIS 7

Syllabus

<p>1. Set-Off and Counterclaim—Grounds—“Recoupment”.</p> <p>The defense of a “recoupment” means that when the defendant in a suit has sustained damage because of the plaintiff's failure to perform his part of the contract, the defendant may set off against the plaintiff’s claim any such damages that he may prove, which damage, however, must grow out of the contract sued on and be occasioned by the plaintiff’s failure to perform his part thereof.</p> <p>2. Evidence—Weight of Evidence.</p> <p>Damages by way of recoupment must be definitely and clearly proved.</p> <p>3. Set-Off and Counterclaim—Amount.</p> <p>Damages by way of recoupment can in no event exceed the plaintiff’s claim.</p> <p>4. Set-Off and Counterclaim—Several Contracts—Recoupment.</p> <p>In an action to recover for apples sold and also for peach carriers sold to the defendant, any damage sustained by defendant by reason of the plaintiff’s failure to perform one of his contracts could not be set off against the plaintiff’s claim under the other contract.</p> <p>5. Set-Off and Counterclaim—Recoupment—Scope.</p> <p>Defendant, upon showing damages from plaintiff’s refusal to perform either of the contracts sued, might set them off against the plaintiff’s claim under that particular contract; but if the contracts were terminated by the defendant, such damages could not be set off by way of recoupment.</p>