D. Smith, N. Y. 317. See, also, Mo. Rev. Stat. (1855)1278 ; 3 Watts & S. Penn. 472; 17 Serg. & R. Penn. 385 ; 12 How. Pract. N. Y. 310.
4. The damages recouped must be for a breach of the same contract upon which suit is brought. 3 HUI, N. Y. 171; 2 Wend. N.
Y. 240 ; 4 Sandf. N. Y. 147 ; 10 Ind. 329. They may be for a tort ; but it seems that the tort must be a violation of the contract, and they are to be measured by the extent of this violation, and no allowance taken of malice. 10 Barb. N. Y. 55 ; 17 Ill. 38 ; 4 Serg. & R. Penn. 249 ; 5 id. 122 ; 1 Yeates, Penn. 571 ; 2 Dal'. Penn. 237 ; 3 Binn. Penn. 169. The language of some cases would seem to imply that recoupement may be had for damages connected with the subject-matter or transac tion upon which the suit is brought, but which do not constitute a violation of any obligation imposed by the contract, or of any duty im posed by the law in the making or pethrm ance of the contract. 14 III. 424 ; 17 id. 38. But these cases wiII bo found to be decided with reference to statutes of counter-claim. And even in the construction of such statutes it has been doubted whether it is n,ot better to confine the damages to violations of the contract. 8 Ind. 399 ; 2 Sandf. N. Y. 120.
5. It is weIl established, in the absence of statutory provisions, that it is optional with the defendant whether he shall plead his cross claim by way of recoupement, or resort to an independent action. 14 Johns. N. Y. 379 ; 13 Wend. N. Y. 277 ; 3 Sandf. N. Y. 743 ; 12 Ala. N. s. 643 ; 3 Ind. 59 ; 4 id. 585 ; 21 Me. 415. Nor does the fact of a suit penoling for the same damages estop him from plead ing them in recoupement, although he may be compelled to choose upon which action he shall proceed. 3 E. D. Smith, N. Y. 135 ; 1 Watts & S. Penn. 58 ; 5 Watts, Penn. 116. Payment after action brought, although nevor pleadable in answer to the action, was usually admitted in reduction of damages. 4 N. H. 557 ; 6 Ind. 26 ; 2 Bingb. c. 88 ; 7 Carr. & P. 1 ; 1 Mees. & W. Exch. 463. But the defendant can never recoup for damages ac cruing since action brought. 20 Eng. L. & Eq. 277 ; 4 Barb. N. Y. 256; 2 Binn. Penn, 287.
6. It has been maintained by some courts that the law of recoupement is not applicable to real estate. Accordingly, they have denied the defendant the right, when sued for the purchase-money, to recoup for a partial fail ure of title. 11 Johns. N. Y. 50 ; 2 Wheat. 13 ; 12 Ark. 709 ; 17 id. 254. But the most of these cases will be found denying him that right only before eviction. A confusion ha,s been introduced by regarding failure of titIe and failure of consideration as convertible terms. The consideration of a deed without covenants is the mere delivery of the install ment. Rawle, Cov. 489, 1st ed. A fail ure of tide in such case is not a failure of consideration, and it therefore affords no ground for recoupement. The consideration
of a deed with covenants does not fail till the covenantee has suffered damages on the cove nants, which in most cases does not happen till eviction, either actual or constructive. After this has happened, his right t,o recouy is now pretty generally admitted. This is nothing more than allowing him to recoup as soon as he can sue upon the covenants. 21 Wend. N. Y. 131 ; 25 id. 107 ; 19 Johns. N. Y. 77 ; 13 N. Y. 151 ; 8 Barb. N. Y. 11 ; 3 Pick. Mass. 459 ; 14 id. 293 ; 6 Gratt. Va. 305 ; Dart, Vend. 381 ; Rawle, Cov. 516.
It has been more generally admitted that where there is a failure of the consideration as to the quantity or quality of the land, the purchaser may recoup upon his covenants. 12 Ark. 699 ; 17 id. 254 ; 2 Kent, Comm. Lect. 39, 470; 18 Mo. 368 ; 20 id. 443.
7. Under the common;law system of plead ing, the evidence of a recoupement, if going to a total failure of consideration, might be given under the general issue without notice, but if it went only to a partial failure, notics was required to prevent surprise. 6 Barb. N. Y. 386 ; 5 Hill, N. Y. 71, 76 ; 7 id. 53 ; 2 N. Y. 157 ; 6 N. II. 497 ; 3 Ind. 265 ; 6 id. 489. This is the only way it could be ad mitted, for it could not be pleaded, a partial defence constituting neither a plea in bar nor in abatement. Under a notice it was admitted to aid in sustaining the general denial.
But under tbe new systems of practice fashioned more or less after the New York Code, there being no general issue t,o which the notice WAS subsidiary, the defendant is required to plead his defence whether it is in answer of the whole demand or only in re duction of damages. 6 How. Pract. N. Y t33 ; 8 id. 441; 11 N. Y. 352; 16 id. 297 ; 18 Mo. 368.
S. The effect to be given to the law of re coupement will depend, in many of the states, upon the statutes of counter-claim and offset in force. In Missouri, for instance, the lart guage seems rather broad. It may be for any "cause of action arising out of the con tract or transaction set forth in the petition as the foundation of the plaintiff's claim or connected with the subject of' the action." Mo. Rev. Stat. 1855, 1233. This probably contemplates a recoupernent in actions ex de licto ds well as ex contractu. In the former class, difficulty will sometimes be encountered in determining when the claim is so connected with the subject of the action as to constitute a legal ground of recoupement. In the latter class, perhaps it would be safer not to allow any thing by way of recoupement unless it worked a violation of some obligation im posed by the contract, or some duty imposed by the law in the making or performance of it. 2 Sandf. N. Y. 120 ; 8 Ind. 399.
See, generally', 2 Smith, Lead. Cases, Cutter vs. Powell ; Barbour, Offset ; Sedgwick, Meas. Dam. 427 ; Ramie, Cov. 516.