majority">McAllister, J.

We regard the proposition as incontestable, that where a defendant seeks to recoup damages for a breach of an undertaking on the part of the plaintiff, arising out of the same transaction or subject-matter, as that of the plaintiff’s cause of action, he will be subject to the burden of showing by his evidence, all of the requisite elements of a cause of action in the same manner, as if he himself had brought suit upon, and for a breach of such undertaking. And it is equally clear, that to maintain an action for a breach of either of the alleged special contracts, if one had been brought by Baker Bros, against Hedstrom & Co., the former would have been required to aver in their declaration, and prove by their evidence, a consideration for the undertaking of the latter, by averring and proving mutual promises concurrent and obligatory upon both parties, at the same time. Livingston v. Rogers, 1 Caines’ R. 583; Utica & Schenectady R. R. Co. v. Brinkerhoff, 21 Wend. 137, and cases there cited.

And in order that the court might be able to determine whether the stipulations of the respective parties were mutual and dependent or independent, it would be necessary for the Bakers to show by their averments and proofs at what rate and when and how they were to pay the price of the coal; so that if it turned out that the}? wore to pay any portion of it, or do any other act in respect thereto, at the time of the delivery, then it would be necessary for them to aver and prove by a preponderance of evidence such concurrent a.ct, or readiness and willingness to perform. Porter v. Rose, 12 John. 209; Topping v. Root, 5 Cow. 404; Tinney v. Ashley, 15 Pick. 546: Pomeroy v. Gold, 2 Metcalf, 500; Savery v. Goh, 3 Wash. C. C. 140.

When we examine the instructions given to the jury, by the court below, and purporting to direct them as to all the elements necessary to a recovery of damages by way of recoupment, we find no allusion to the matter of a consideration for the promise, on the part of Hedstrom & Co., or to that of mutual promises, or to the matter of, when or how the Bakers were to pay the price, or any readiness on their part, to receive or pay for the coal or perform any concurrent act. Every matter of fact, submitted by the instructions to the jury, might have been found in favor of the Bakers, and yet, notwithstanding such finding, the alleged promises on the part of Hedstrom & Co., not have amounted to anything more than moda, pacta, from which no legal obligation could arise.

This is especially so as to the matter relating to the rail coal. Bailey v. Austrian, 19 Minn. 535.' The judgment below should be reversed, and a new trial awarded.

Reversed and remanded.'

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