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Locher
v.
Allen.
v.
Allen.
8 Div. 584..
Alabama Court of Appeals.
Jan 17, 1928.
Published opinion
Bradshaw Barnett, of Florence, for appellant.
A claim in recoupment must spring out of the contract or transaction on which the action is founded. A breach of contract on the part of plaintiff cannot be set up as a bar to the plaintiff's action for money had and received. Chandler v. Wilder, 215 Ala. 209 , 110 So. 306 ; Washington v. Timberlake, 74 Ala. 259 ; Mayberry v. Leech, 58 Ala. 339 ; Hembree v. Glover, 93 Ala. 662 , 8 So. 660 ; Mizell v. Farmers' Bank, 180 Ala. 568 , 61 So. 272 .
Mitchell Hughston, of Florence, for appellee.
Claims arising out of contracts may be set off, recouped, or counterclaimed. 34 Cyc. 476; 41 C. J. 2; Friddle v. Braun, 180 Ala. 556 , 61 So. 59 .
Bricken.
Cited by 1 opinion | Published
BRICKEN, P. J.
The complaint contained one count in Code form for money had and received.
The trial court overruled the demurrer to pleas 2 and 3. We are of the opinion that there was no error in this ruling. Friddle v. Braun, 180 Ala. 556, 61 So. 59; 34 Cyc. 476.
While the equitable action for money had and received is not founded upon the breach of a contract, a defendant in such action may plead facts showing that in equity and good conscience the plaintiff is not entitled to recover or is indebted to him in a sum greater than the sum claimed by plaintiff, if the indebtedness grows out of the transaction on which plaintiff’s claim is based.
The ruling of the trial court is affirmed.
Affirmed.