
    William S. Harlan vs. St. Paul, Minneapolis & Manitoba Railway Company.
    January 23, 1884.
    Action for Services — Beeovery on Counterclaim for negligence.- — In an action brought upon contract for services, the defendant may plead, by way of recoupment and set-off, damages sustained by him through the negligence of plaintiff in the performance of the same contract of employment upon which the action is brought, and, if the balance be found in his favor, he may have judgment against the plaintiff for the amount thereof.
    Order Striking out Answer — Appeal-—Exception.—An order striking out an answer being an appealable order, and forming part of the record, need not be excepted to in order to entitle the appellant to have it reviewed.
    This action was brought before a justice of the peace in Ramsey county to recover for services rendered by plaintiff as a brakeman. The answer, as a first defence, denied that the plaintiff had worked for the defendant the length of time alleged in the complaint, but admitted 19 days’ work for which the plaintiff had not been paid, and alleged, as a second defence, and as a counterclaim, that the plaintiff had performed his duties so carelessly and negligently as to occasion the defendant damages to the amount of $100, for the excess of which amount over the amount owing plaintiff the answer demanded judgment.
    The plaintiff recovered judgment in the justice’s court, and defendant appealed to the municipal court of St. Paul, where, on plaintiff’s motion, the second defence in the answer was stricken out, and judgment entered for plaintiff for the nineteen days’ work admitted in the answer to be unpaid for. From this judgment defendant appeals.
    
      B. B. Galuska and J. Kling, for appellant.
    
      Erwin, Ryan & Ives, for respondent.
   Mitchell, J.

Plaintiff brought this action to recover for services rendered to defendant as brakeman on its railroad. The defendant, in its answer, set up, “by way of defence and counterclaim,” damages sustained through the negligent performance by plaintiff of the same contract of employment upon which the action is brought. This could be done, independent of any statute, under the common-law doctrine of recoupment. It was well settled, upon common-law principles, that where the defendant has sustained damages by reason of the plaintiff’s non-performance of his part of the agreement sued on, such defendant has the right to abate the plaintiff’s claim by the amount of such damages. 3 Wait, Act. & Def. 610; 7 Wait, Act. & Def. 544. If the defendant can show that the plaintiff himself has violated some stipulation of the same contract sued on, he may recoup his damages arising from such breach, whether they be liquidated or unliquidated. Damages incurred by the defendant through the negligence of the plaintiff in the performance of the contract of employment sued on, might be thus interposed by way of recoupment. Waterman on Set-off, §§ 535, 536. Our statute has extended this right so that now a defendant may plead such damages, not merely in reduction or bar of plaintiff’s claim, but also so that, if the balance be found in his favor, he may have affirmative judgment for the amount against the plaintiff. The court, therefore, erred in striking out the second defence in defendant’s answer.

An order striking out an answer being an appealable order, which constitutes a part of the record, need not be excepted to in order to entitle the appellant to have it reviewed. Ely v. Titus, 14 Minn. 93, (125.)

Judgment reversed, and new trial ordered.  