Trover, for a lot of timber. Plea, the general issue. Facts found by the court. In the fall of 1880 the plaintiff bargained with the defendant for certain timber then standing on her land, with the right to remove the same as fast as it was cut, yarded, surveyed, and paid for. Under the contract, timber was cut and yarded by the plaintiff, amounting to about $490, which was surveyed and paid for in full, and was nearly but not quite all taken away in the winter of 1880-’81.
Cited by 1 later decisions — most recently December 1895
¶1
The defendant having pleaded the general issue ■only, the evidence excepted to was inadmissible, both upon general principles and under all the rules of pleading; and it is therefore properly held, in cases of this description, that the right of recoupment cannot be exercised without due notice to the plaintiff.
Steamboat Wellsville
v.
Geisse,
3 Ohio St. 333 ;
Runyan
v.
Nichols,
11 Johns. 547;
Beecker
v.
Vrooman,
13 Johns. 302;
Ives
v.
Van Epps,
22 Wend. 155;
Mayor
v.
Trowbridge,
5 Hill 71;
Barber
v.
Rose,
5 Hill 76;
Nichols
v.
Dusenbury,
2 N. Y. 283;
Keyes
v.
Slate Co.,
34 Vt. 81;
Hogg
v.
Cardwell,
4 Sneed 151;
Basten
v.
Butter,
7 East 479; 7 Wait Act. & Def. 545.
¶2
To hold, otherwise would obviously result in surprise and injustice, and constitute so entire an emancipation from all rules of pleading, that neither the parties nor the court would be able, in this growing class of cases, definitely to ascertain from the record either the matter actually in controversy, or what testimony would be relevant and what would not, in its decision. In a word, it would sanction a mode of proceeding fraught only with absurdity and evil.
