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 ; Wheat v. Dotson, 12 Ark. 699; 2 Kent House v. Marshall, 18 Mo. 368; Green v. Bat son, 71 Wis. 54, 36 N.•W. 849, 5 Am. St. Rep. 194.
Under the common-law system of pleading, the evidence of a recoupment, if going to a total failure of consideration, might be giv en under the general issue without notice, but if it went only to a partial failure, no tice was required to prevent surprise ; Mc Cullough v. Cox, 6 Barb. (N. Y.) 386; Jones v. Winchester, 6 N. H. 497. This is the only way it could be admitted, for it could not be pleaded, a partial defence constituting nei ther a plea in bar nor in abatement. Under a notice it was admitted to aid in sustaining the general denial.
But under the new systems of practice there being no general issue to which the notice was subsidiary, the defendant is re quired to plead his defence whether it is in answer of the whole demand or only in re duction of damages ; Bush v. Prosser, 11 N. Y. 352 ; House v. Marshall, 18 Mo. 368.
The effect to be given to the law of recoup ment will depend, in many of the states, up on the statutes of counter-claim and offset in force. In Missouri, for instance, it is pro
vided that if any two or more persons are mutually indebted in any manner whatever, and one of them commence an action against the other, one debt may be set against the other, although such debts are of a different nature ; 1 R. S. § 3867. The term counter claim under this statute is held to include both set-off and recoupment ; Gordon v. Brun er, 49 Mo. 570 ; the distinction between the two terms being important only from the fact that the former must arise from con tract, and can only be used in an action founded on contract ; while the latter may spring from a wrong, provided it arose out of the transaction set forth in the petition, or was connected with the subject of the ac tion; id. In the case of actions arising out of contracts it has been held that nothing would be•allowed by way of recoupment un less it worked a violation of some obligation imposed by the contract, or some duty im posed by the law in the making or perform ance of it ; Cram v. Dresser, 2 Sandf. (N. Y.) 120; Lovejoy v. Robinson, 8 Ind. 399.
See SET-OFF ; Waterman, Set-Off, etc.; 10 L. R. A. 378, note; 7 Am. L. Rev. 389; 9 Am. L. Reg. 330 ; Beecher v. Baldwin, 55 Conn. 419, 12 Atl. 401, 3 Am. St. Rep. 63.