
    M. B. Upton & Co. v. I. J. Julian & Co.
    In an action of assumpsit, brought upon a promissory note given for goods sold under a special contract, the defendant, under a special notice, may recoup for a portion of the goods not delivered, or for defect of quality in the portion delivered.
    
      This is a petition in error,
    filed in the district court of Miami county, to reverse the judgment of the common pleas of said county, and I’eserved for decision here.
    Julian & Co. brought assumpsit against Upton & Co. on a note of hand.
    Upton & Co. pleaded the general issue, and gave notice, in substance, that on the trial they would prove that the note sued on was, with others, given for a lot of stoves, stove-plates, tinware, a patent-right for a cooking-stove, and a lot of stove-patter ns *and flasks, sold to them by Julian & Co., and that they (Upton & Co.) had fully settled, paid, and adjusted the amount of the purchase, with the exception of the note mentioned; and that all the patterns and flasks were never delivered, and that the portion of them which were delivered were not in working order;. and that the deed for the patent-right was never made and delivered.
    The case was tried to a jury, and resulted in a verdict and judgment for Julian & Co.
    The bill of exceptions, taken on the trial, shows that the note sued on (with other notes which had been transferred before maturity to bona fide holders without notice) was, as stated in the notice, given for a lot of stoves, tinware, and a patent-right for a cooking-stove, and a lot of patterns and flasks for easting stoves,, sold by Julian & Co. to Upton & Co.
    The written contract of sale was in evidence, and specifies, among other things, that the patterns were to be in good order' and the flasks in working condition.
    Upton & Co. gave evidence to show that in said purchase the patterns and flasks were estimated at the gross sum of fifteen hundred dollars; and then offered to prove that certain pieces of the-patterns were not delivered to them by Julian & Co.; and that of the patterns and flasks which were delivered, some were not in good working condition. But Upton & Co. did not offer to prove-that any entire pattern or patterns were not delivered, or that there, had been any price fixed by the parties upon any of the pieces not delivered, or upon any part of the patterns or flasks aforesaid, which Upton & Co. allege to have been not in good working condition. But the court refused to allow the evidence so offered to go to the jury.
    This refusal is claimed by Upton & Co. to be erroneous, and they, on that ground, seek to reverse the judgment of the court, below.
    
      Hart, Johnston & Jones, for plaintiffs in error,
    insisted that the1 defense offered by way of reducing the damages, was clearly admissible under the doctrine of recoupment, and cited Steamboat *Wellsville v. Geisse, 3 Ohio St. 333; Wheat v. Dotson, 7 Ark. Cond. 699.
    
      S. S. McKinney, for defendant in error, insisted:
    1. That the defendants below could not recoup damages, because the bill of exceptions does not show that there were prices fixed to each necessary piece of the patterns that were not in working condition, nor that such pieces of either formed an entire article. Baker v. Thompson, 16 Ohio, 507, 508.
    2. That the notice attached to the plea is a general notice and does not specify sufficiently definite the pieces of the patterns and flasks not delivered, or that were not in working condition. Steamboat Wellsville v. Geisse, 3 Ohio St. 333.
   Scott, J.

It would seem probable, from,the bill of exceptions in this case, that the evidence which the plaintiffs in error sought to offer in the court below, in reduction of damages, was excluded on the authority of Baker v. Thompson, 16 Ohio, 507, 508. Bu that case seems to have turned wholly on the construction of the statute in relation to a total or partial failure of consideration. No reference is made in the case to the doctrine of recoupment. But in the subsequent case of Steamboat Wellsville v. Geisse, 3 Ohio St. 333, the right of a defendant, in a proper case, and under a proper state of pleadings, to reduce by way of recoupment, the damages sought to be recovered by the plaintiff, was directly considered and fully recognized as the law of this state. The court say: “ It is a right so reasonable in itself, so necessary to the simple and economical administration of justice, and so entirely congenial to our system of jurisprudence, that, however doubted or denied in some parts of the state, it has, in general, commended itself to our courts, and become well established.” In this opinion we concur.

When a party.sues to recover for goods sold and delivered, or work and labor performed under a contract, it would seem reasonable that he may be required, upon proper notice, to account in the same action for his own disregard of the obligations of the same contract. Why should he be allowed to recover, as upon a *full performance on his part, and the defendant be driven to a cross-action, the result .of which would leave the parties just where the principle of recoupment would have placed them at the close of the former suit?

And the principle is the same, whether the suit be brought upon the original contract, or, as in this case, upon a promissory note founded thereon.

Our present code fully sanctions this right, and provides for its exercise by way of counter-claim.

It was properly held, in the case last cited, that as recoupment signifies nothing more than a reduction of damages, the right could only be exercised under a special notice, and not under a plea which purports to bo a bar to the action.

But, in the present case, the defendants in the court below had laid a proper foundation for the exercise of this right by special notice, which called in question the performance, on the part of the plaintiffs, of their stipulations in the contract which formed the consideration of the note sued upon. They had notified the plaintiffs specifically of their intention to prove, upon the trial, that the patterns and flasks, in purchase of which the note had been in part given, had not been delivered; and that the portion which had been delivered was not in working condition, as the contract of the parties required. The evidence which was excluded tended to prove the truth of at least a part of the special matter set up in the notice, and should have been allowed to go to the jury.

Judgment of the common pleas reversed, and cause remanded.

Bartley, C. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.  