¶1I concur with the chief justice, that the entranceway was not constructed within a reasonable time; that the failure to do so was a breach of the plaintiffs’ agreement with the defendants, and that the plaintiffs should not recover rent therefor for any period anterior to its full completion.
¶2But I think the chief justice is in error in holding that the damages which the defendant claims to have sustained, by reason of the breach of the contract by the plaintiffs, is not the subject of counter-claim or recoupment. They were damages for the breach of the same contract, and, therefore, within the definition of counter-claim (Code, § 150).
¶3As the referee determined that the work was done within a reasonable time, he necessarily overruled the entire defense, as well the counter-claim as that the plaintiffs should have no rent for the entranceway.
¶4It is not necessary, therefore, to look at the evidence of damage. The conclusion of the referee, as a matter of law, overruling the counter-claim on the ground that the work was done in a reasonable time, having been erroneous, it is to be assumed that he did not overrule it as being unsupported by evidence.
¶5I think the judgment should be set aside, order of reference vacated and new trial granted, with costs to the appellant to abide event.