RECOUPMENT (Fr. recouper, to cut again). The act of abating or recouping a part of a claim upon which one is sued by reason of a legal or equitable right result ing from a counter-claim arising Out of the same transaction. The right of the defend ant, in the same action, to claim damages from the plaintiff, either because he has not complied with some cross obligation of the contract upon which he sues, or because he has violated some duty which the law im posed upon him in the making or perform ance of that contract. Mayor of New York v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538 ; Heaston v. Colgrove, 3 Ind. 265; Robertson v. Davenport, 27 Ala. 574 ; Brunson v. Mai tin, 17 Ark. 270 ; Higgins v. Lee, 16 Ill. 495; Nelson v. Johnson, 25 Mo. 430.
Recoupment is the right to set off unliq uidated damages, while the right of set-off, as distinguished from recoupment, only liquidated demands, or those e gable of being ascertained by calculation ; Parker v. Hartt, 32 N. J. Eq. 225. Both these terms have a technical meaning and both are included in the same general term, counter claim, which see.
Is a cross demand, which a defendant may set up or not, at his choice; he is not con cluded if be does not. Whether he can aft erwards sue for the residue of his claim, or not, is a disputed question. He could not, at common law, obtain a judgment against the plaintiff in his favor ; Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 258, 30 Sup. Ct. 78, 54 L. Ed. 179.
Defences, such as recoupment, which, though out of the transaction consti tuting the plaintiff's demand, may cut it down or give rise to an antagonistic demand, are of modern growth and are merely a con nivance that saves bringing another suit, not a necessity of the defence. When defendant sets them up he becomes a plaintiff in his turn and subjects himself to the jurisdiction; Vir ginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252, 30 Sup. Ct. 78, 54 L. Ed. 179. It is a cross demand as distinguished from a defence; Merchants H. & L. Co. v. J. B. Clow & Sons, 204 U. S. 286, 27 Sup. Ct. 285, 51 L. Ed. 488.
This is not a new title in the law, the term occur ring from the 14th to the 16th centuries, although It seems of late years• to have assumed a new signifi cation, and the present doctrine is said to be still in its iufancy ; 7 Am. L. Rev. 389. Originally it im plied a mere deduction from the claim of the plain tiff, on account of payment in whole or in- part, or a former recovery, or some analogous fact ; 3 Co. 65; 4 id. 94; 5 id. 2, 31; 11. id. 51, 52. See note to Icily v. Grew, 6 Nev. & M. 467 ; Viner, Abr. Dis
count, 4, 9, 10 ; Barber v. Chapin, 28 Vt. 413. This meaning has been retained in many modern cases, but under the name of deduction or reduc tion of damages; 1 Maule & S. 318, 323 ; 2 M. & G. 241; 7 M. & W. 314 ; Curtis v. Ward, 20 Conn. 204; McMorris v. Simpson, 21 Wend. (N. Y.) 610; Pierce v. Benjamin, 14 Pick. (Mass.) 356, 25 Am. Dec. 396. The word recoupment has also been applied to cases very similar to the above ; Stearns v. Marsh, 4 Den. (N. Y.) 227, 47 Am. Dec. 248 ; Saltus v. Everett, 20 Wend. (N. Y.) 267, n Am. Dec. 541. See 7 Am. L. Rev. 389, where recoupment is fully treated.
Recoupment as now understood seems to corre spond with the reconvention of the civil law, some times termed demandes incidentes by the French writers, in which the reus, or defendant, was per mitted to exhibit his claim against the plaintiff for allowance, provided it arose out of, or was incidental to, the plaintiff's cause of action. Euvres de Po thier, vol. 9, p. 39; 1 White, New Rec. 285 ; Voet. tit. de Judiciis, n. 78 ; La. Code Pr. art. 375; Lanusse's Syndics v. Pimpienella, 4 Mart. N. S. (La.) 439 ; Walcott v. Hendrick, 6 Tex. 406.
In England, as well as in some states, the principles of recoupment as defined above have been recognized only in a restricted form. Under the name of reduction of dam ages, the defendant is allowed to show all such violations of his contract by the plain tiff as go to render the consideration less val uable, but he is compelled to resort to an independent action for any immediate or con sequential damages affecting him in other re spects; 8 M. & W. 858 ; 1 C. & P. 384 ; Mc Alpin v. Lee, 12 Conn. 129, 30 Am. Dec. 609 : Dodge v. Tileston, 12 Pick. (Mass.) 330; Withers v. Greene, 9 How. (U. S.) 231, 13 L. Ed. 109. See Reynolds & Lee v. Bell, 84 Ala. 496, 4 South. 703; Andre v. Morrow, 65 Miss. 315, 3 South. 659, 7 Am. St. Rep. 658. But these restrictions are all gradually dis appearing, and the law is assuming the form expressed in the cases cited under the def inition of modern recoupment, the main rea son upon which the doctrine now rests being the avoidance of circuity of In Pennsylvania a defendant may avail himself, by way of recoupment or equitable defence, of a breach of warranty or of a fraudulent representation, and show that the goods sold were worth less than they would have been if they were such as they were warranted or represented to be ; Dushane v. Benedict, 120 U. S. 648, 7 Sup. Ct. 696, 30 L. Ed. 810.