Damages that accrue to a defendant from the transaction out of which the plaintiff's cause of action arises may be recouped. Cole v. Colburn,61 N.H. 499; Simonds v. Cross, 63 N.H. 123. The doctrine of recoupment is in general applicable whenever in the trial of the plaintiff's action an investigation of the facts on which the claim of the defendant depends is necessary. The law does not compel parties to bring two actions when with equal convenience their rights can be settled in one.
The employment of the plaintiff by the defendants as the manager of their business, and the rendition of his services in that *Page 439 capacity from May 1, 1893, to January 1, 1895, constituted a single transaction within the meaning of the rule. The plaintiff's action is brought to recover for services rendered during that time, and the damages sought to be recouped are the direct result of his negligence and disobedience in performing them. The duties of the plaintiff were not affected by the change of his compensation or other modification of the contract. The legal aspect of the transaction, so far as the present question is concerned, is the same as it would have been if the terms of his employment after May 1, 1894, had been agreed upon in the first instance.
The question of the damage caused to the defendants by the plaintiff's negligence was necessarily tried. There is no suggestion that the plaintiff was not accorded as thorough and fair a trial, that he was not as fully and satisfactorily heard by his witnesses and counsel, as he could have been in an independent action brought against him by the defendants for the same cause. The only objection to a recovery by the defendants of the balance found due to them after satisfying the amount due to the plaintiff, rests upon the form of the proceeding in which the trial was had. Objections of this character the court does not stop to consider. When on a full and fair trial the merits of a controversy have been determined and the only objection is to the form of procedure, the prevailing party is permitted to file any amendment of his pleadings that may be necessary to obviate the objection, and thereupon to take judgment. Clark v. Clark, 62 N.H. 267,272; Cushing v. Miller, 62 N.H. 517, 527; Fitch v. Nute, 62 N.H. 700; Cole v. Gilford, 63 N.H. 60; Peaslee v. Dudley, 63 N.H. 220; Smith v. Hadley,64 N.H. 97; Sleeper v. Kelley, 65 N.H. 206. To entitle the defendants to judgment for the balance of their damages, no amendment is necessary. Their cause of action is fully set forth in their brief statement. It contains no prayer for a judgment for the balance due to them. If in this particular it is defective, it may be now amended. Ordinarily it is the duty of the court to render such judgment as upon the whole record the law requires, without regard to any request or want of request therefor. Kittredge v. Emerson,15 N.H. 227, 239; Rochester v. Whitehouse, 15 N.H. 468, 474; Le Bret v. Papillon, 4 East 502.
Cross-actions in cases of this kind, especially when separately tried, entail a needless expense. They depend to a large extent, if not altogether, upon the same evidence, and in our practice usually are, as they always ought to be, tried together. In such a trial, the second action in most cases serves merely to confuse the issues and perplex the jury. In Cook v. Castner, 9 Cush. 266, two actions, one for deceit of the vendor in the sale of a vessel and the other in assumpsit for the unpaid part of the purchase *Page 440 money, were tried together. The jury were directed (p. 277), "first, to find whether any fraud had been practiced by the sellers of the vessel, and if so, what were the damages . . . If it equaled or exceeded the balance due for the purchase, then the defendants in this action would be entitled to a general verdict, and, as plaintiffs in the other action, be entitled to a verdict for the excess, if any. If damage was sustained, but less than the balance of the purchase, it would go in reduction of the amount due the plaintiffs for the purchase, and they would be entitled verdict in this suit for the difference, and, as defendants, to general verdict in the other action." If the defendants in the first action had pleaded their claim for the balance of the price in recoupment, the issues would have been less complicated and more conveniently tried. The jury would have been told to find the amount due the defendants for the purchase money, whether they practiced any fraud, and if so, the damages thereby caused to the plaintiff, to return a verdict for the defendants if these sums were equal, and if not, for the difference in favor of the party entitled to the larger sum.
The impression that the defendant who pleads his demand in recoupment cannot have judgment for the excess found due to him over the amount he owes to the plaintiff rests upon a dictum of Parker, J., in Britton v. Turner, 6 N.H. 481, 495. The question was not there and never since has been judicially considered. In Union Bank v. Blanchard, 65 N.H. 21, the question whether the defendant could recover the balance of his damages set up in recoupment did not arise. He tendered the plaintiffs, and practically paid into court, $607.28, thereby admitting that sum to be due to them after the damages which he sought to recoup were allowed to him, and, as the court there say (pp. 22, 23), "the only question tried or that could be tried under the pleadings was . . . whether anything more was due." The plaintiffs were entitled to the full amount tendered, although it proved to be a larger sum than was due to them. What is there said, after the language quoted, so far as regards the law of this state, is merely a repetition of the dictum in Britton v. Turner.
Judgment for the defendants for $265.10.
All concurred. *Page 441