
    Sterling Products Co. v. Watkins-Gray Lumber Co.
    (Division A.
    March 26, 1923.)
    [95 South. 646.
    No. 23015.]
    
      On suggestion of error.
    Suggestion overruled.
    For former opinion, see 131 Miss. 145, 95 So. 313.
   Holden, J.,

delivered the opinion of the court.

Appellant insists that the result of the opinion handed down in this case is to overrule Fowler v. Payne, 52 Miss. 210. We do not so understand that case. Although that was a cause brought in a court of equity, and the doctrine of recoupment as administered in the courts of law was applied, it ivas distinctly stated by the court that the question whether the counterclaim there involved could be used offensively as well as defensively was not presented by the pleadings. It is true the court expressed doubt as to whether such a claim could in any case be used offensively, but what was said in that respect was beside the question and therefore not decision. In pretermitting the question the court used this language:

“It may be well doubted if such a result as this could be properly reached in any state of pleadings, or in any form of action. It is certain that it could not in the present case. The bill Avas filed to enjoin an action at law which the lessor had brought to recover rents accruing after the burning. It sought, among other things, to set up, by Avay of recoupment, the damages sustained by the lessee by the lessors’ failure to rebuild. It was treated as a plea or recoupment in all the pleadings, and expressly so declared to be by this court in 49 Miss. 33.”

Then the court proceeds to state the common-law doctrine that — “Recoupment is purely defensive, and never carries with it any affirmative relief.”

Suggestion of error overruled.  