The defendant filed a set-off, and also at the trial before the auditor, as it seems, claimed a deduction by way of recoupment from any sum found to be due the plaintiff, on account of the plaintiff's failure to perform the special contract under which the work was done. This course was open to him, or he might rely on the set-off alone and bring a separate suit for the damage. But when he elected to take the former course, I think he precluded himself from recovering a balance, unless such balance should be found his due upon the set-off alone without recourse to the claim for damages. Blodgett v. Berlin Mills Co., 52 N.H. 215. To hold otherwise would be allowing him in this indirect manner to recover upon an independent cause of action in a, suit wherein he is defendant.
SMITH, J.
As the items embraced in the set-off were received in payment of the plaintiff's claim, the defendant could not maintain an action to recover their value, any more than, if the payments had been made in cash, he could have maintained an action to recover back the money. He has paid all but thirty-one dollars and forty-seven cents of the plaintiff's claim: against this latter sum he can recoup his damages for the plaintiff's breach of the contract, but, under the law as settled in this state, cannot recoup beyond that sum.
Case discharged. *Page 398