
    Crouch vs. Miller.
    Recoupment of damages is allowed the defendant in cases where the pFaintiif who has only partially performed liis portion of the contract comes into court asking compensation for such partial performance»
    This is an action of assumpsit brought by Miller against Crouch, in the Circuit Court of Shelby county.
    The case was tried by W. H. Looning, Special Judge, and a jury of Shelby county, on the plea of non-assumpsit, at the October term, 1844, and a verdict and judgment rendered for the plaintiff, from which the defendant appealed.
    
      E. M. Terger, for plaintiff in error;
    
      V. D. Barry, for defendant in error.
   Green, J.

delivered the opinion of the court.

Miller redeemed from Crouch a tract of land which had been sold as the property of Redford. Crouch insisted that in addition to the sum bid at the sale, filler should take up a note on Redford, payable to one Porter^and endorsed to Crouch. To this Miller agreed, provided Crouch would refund the money, should it turn out that Miller was not legally bound to pay this note in order to redeem the land. To this Crouch agreed, and Miller took up the note. This suit is brought for the amount so paid.

It is not pretended that Miller was bound to take up the note in order that he should be entitled to redeem the land; but it is insisted, that while he held the note it fell due, and that he failed to demand payment of Redford, and notify Porter the endorser, whereby Porter is discharged, and a loss to Crouch of the debt has thus accrued by Miller’s laches; for which he is liable in damages; the amount of which should be allowed him by way of recoupment in this action. This is no case for recoupment of damages. The cases of recoupment where a party has sustained injury by reason of the non-performance of a cbntract, and the party thus failing to perform comes into court to recover so much as he may deserve to have for his partial performance, have no analogy to the present case. 1 Cow. R. 359; 3 Hump. 56.

It is not necessary to enquire whether Miller is liable for failing to make demand and give notice in this case, in any form of proceeding. It would be difficult to fix upon him that duty, by reason of the contract between the parties as set forth in this record.

Affirm the judgment.  