Waterman v. Clark

Citations

• 76 Ill. 428

Syllabus

<p>1. Recoupmekt—must proceed out of the same subject matter. Recoupment and set-off are governed by different principles. In recoupment, a claim originating in contract may be set up against one founded in tort, and vice versa; the cross demand must proceed from the same subject matter as the plaintiff’s right of action, and the defendant can not, as in the case of a setoff', recover any excess in his favor. It can only be used to mitigate or extinguish damages.</p> <p>2. Same—need not arise as between all the parties. In an action on a promissory note given bjr principal and surety on a contract of the principal, it is competent to recoup the damages of the principal growing out of the contract, to the same extent as if the note had been given by the principal, and he alone were sued.</p> <p>3. Same—pleading. A claim for recoupment is properly set up under the statute by special plea.</p> <p>4. Same—■principal and surety. Whatever defense, by way of recoupment, will avail the principal, is also available to the surety.</p> <p>5. Same—giving of a note with knowledge of the facts. The right to recoup is not barred by the fact that the damages to he recouped were known to the party executing the note. While the note is an admission of the amount due, and evidence, it is not conclusive of a settlement or waiver of any claim for damages, especially when given under protest.</p>