(dissenting). This court held in the case of McConnell v. Arkansas Brick & Manufacturing Co., 70 Ark. 568, that defendant’s contract with the State was an enforceable one, and that decision is the law of this case with respect to defendant’s rights under the contract — this though the McConnell case has since been overruled. (Pitcock v. State, 91 Ark. 527.)
I am of the opinion that the right of recoupment as a defense has not been abolished by the Code, and that it can be asserted in this case brought by the State to recover the amount due under the contract. I reach that conclusion, however, on somewhat different reasons than that expressed in the opinion of the majority. The remedy of recoupment finds no express recognition in the Code, and one of the sections provides that “all statutes and laws heretofore in force in this State in any case provided for ■by the Code, and inconsistent with-its provisions, are repealed and abrogated.” (Section 7818, Kirby’s Digest.) I have had grave doubts whether that section abolished the remedy of recoupment, but after some hesitation I have concluded that, as the Code was not designed to destroy rights or to alter principles of the law (Baylies, Code Pleading & Practice, p. 3), 'but only to formulate remedies, the provision in question should not be construed to repeal the law giving a remedy under circumstances where no other is provided under the Code. Recoupment is included in counterclaim, except that it is used only as a defense, but to that extent it is not provided for in the Code, and is not inconsistent therewith, so it is not abolished.
I concur with the majority, therefore, in holding that the decree should be affirmed so far as it concerns the State’s claim for the price of convict labor furnished under the contract. I dissent from the view that defendant has a right to recoup against the claim for the price of labor furnished after the contract expired. Recoupment, like a counterclaim, must be a cause of action “arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.” The contract, with the State, the alleged violation of which forms the basis of defendant’s claim for damages, expired and was at an end. The State’s suit to recover for the price of labor used after that time was not based on that contract. Therefore .the claim for damages did not arise out of the contract or transaction set forth iff the complaint. The fact that the two transactions closely approximated in point óf time does not make them the same transaction. They are as distinct as though they had been far removed in point of time. I think this view is fully sustained by decisions of this court. Barry-Wehmiller Mach. Co. v. Thompson, 83 Ark. 283, and cases therein cited.
The following decisions of the New York courts also fully sustain that view. People v. Denison, 59 How. Pr. 157; People v. Denison, 84 N. Y. 272.
The fact that the action is for the price of convict labor, the same as under the contract, does not make it “connected with the subject of the action,” so as to allow recoupment. On the whole, I aim of the opinion that the State should recover the fair value of the labor of the convicts after the expiration of the contract. Defendant received the benefit of the labor, and should be compelled to pay the State for it. Under principles which I think are well settled, defendant should not be permitted to recoup, so as to extinguish this item of the State’s claim, damage alleged to have been sustained by reason of the failure to furnish the requisite number of convicts specified in the contract.
It is clear that the defendant had no right to hold and continue to woTk the convicts under the contract after the specified date of expiration. The fact that the boaYd had failed to furnish the stipulated number of convicts did not serve to extend, the period of the contract, for the contract was primarily one to provide for the convicts during a given period of time, and not merely to contract away the labor of the convicts dike chattels or slaves. The specified period was therefore of the essence of the contract, and could not have been extended except by making a new contract in the manner provided by statute.
Frauentiial, J., concurs.