
    William H. Fessenden vs. Forest Paper Company.
    
      Recoupment — must be between the parties originally contracting.
    
    The plaintiff repaired for the defendants certain machines originally made hy a firm of which Fessenden had been a member; held, that the company could . not have deducted from the cost of the repairs anything on account of defects in the original construction of the articles.
    On report from the superior court.
    Assumpsit upon an account annexed for repairs made by the plaintiff for the defendants upon two bleaches, which were originally manufactured for the paper company by the firm of Charles Staples and Son, in which firm Mr. Fessenden was then a partner, succeeding to its business upon the dissolution of the partnership. The defendants claimed that these bleaches or boilers were not constructed properly, nor according to contract, when made ; and claimed to deduct the damages, alleged to have thence arisen, to the corporation from the plaintiff’s bill for repairs. Their right to do so was submitted to this court.
    
      J. D. & F. Fessenden, for the plaintiff.
    An unsettled claim against a firm cannot be set off or recouped against a debt due one of the partners, even if it arises out of the same transaction. R. S., c. 82,' § 50; Banks v. Pike, 15 Maine, 269 ; Adams v. Ware, 33 Maine, 228 ; Bridgham v. Tileston, 5 Allen, 371; Hunt v. Pierpont, 27 Conn., 301; Milliken v. Bartlett, 37 Penn., 456.
    
      William L. Putnam, for the defendant.
    Fessenden was individually liable to make good the obligations of the firm of which he was a member and to which he succeeded ; which liability might be enforced against him alone by other parties, by equitable set-off. Tucker v. Oxley, 5 Cranch, 34, as explained in Gray v. Polls, 9 Bank. Reg., 340. It is not a strict statute set-off, but matters arising out of the same transactions. Peab v. McAllister, 8 Wend., 117; 2 Story’s Eq. Jur., § 1436; Moody v. Towle, 5 Maine, 415 ; Burnham v. Tucker, 18 Maine, 179 ; Dorr v. Fisher, 1 Cush., 271.
   Rescript.

The plaintiff and others manufactured certain articles for the defendants who paid the price therefor, although some defects of manufacture existed therein. This plaintiff, under his individual contract with the defendants, repaired the articles, and thereupon brings this suit to recover for such repairs. The defendants cannot have deducted from the sum due him anything on account of their claim for over-payment to the original manufacturers.

Therefore, there must be

Judgment for the plaintiff.  