Opinion
No. 4071.
Decided December 4, 1951.
In an action by a landlord to recover unpaid rent, the Trial Court's disallowance of the tenants' plea of recoupment, alleging damage as a result of such action, was a proper discretionary determination that the tenants' claims could not be adjudicated conveniently in the present action.
ASSUMPSIT, to recover unpaid rent under a written lease. The defendants filed an amended answer and plea in recoupment in which the defendants denied abandoning the premises and alleged that the plaintiffs had violated the terms of the lease. The plea of recoupment alleges that the plaintiffs "did deny to the defendants the right to enter upon said leased premises to carry on their usual business and occupation, by improperly and without right attaching the stock in trade and fixtures of the defendants, by padlocking said leased premises, and by demanding excessive security for damages, in order to deprive the defendants of their rights in said leased property thereby causing the defendants to be deprived of their profits and livelihood from said leased premises."
The Court disallowed the plea in recoupment and found "that no special circumstances exist which require allowance of the defendants' plea." It appears in the reserved case, transferred by Wheeler, J. that the plea of recoupment "was not dismissed upon procedural grounds."
George R. Scammon (by brief and orally), for the plaintiffs.
William H. Sleeper, Robert Shaw and Wayne J. Mullavey (Mr. Mullavey orally), for the defendants.
Since in this state a landlord has no right to seize the tenants' property for nonpayment of rent, the plaintiffs in this case followed the normal procedure by attaching the defendant tenants' property to secure any judgment that might be recovered. Standish v. Moldawan, 93 N.H. 204, 206. It appears from the reserved case that the plea of recoupment filed by the defendants constitutes "a claim they have been damaged by the action brought by the plaintiffs, on this lease. . . ." To the extent that the gravamen of the plea of recoupment is malicious prosecution, it was correctly denied. Before one can maintain an action for malicious prosecution, the original proceedings must have terminated in his favor. Restatement, Torts, s. 674 (b). To the extent that the plea of recoupment is predicated upon malicious abuse of process (Friel v. Plumer, 69 N.H. 498), it was permissible only if it could be found that "equity and justice required" it. Klein v. Bronstein, 91 N.H. 42, 43. If "special circumstances exist which entitle the defendant to equitable relief" (Vernon Corp. v. Granite c. Co., 93 N.H. 315, 316) a plea of equitable set off or recoupment is permitted. Lovejoy v. Ashworth, 94 N.H. 8, 10. The plea has frequently been allowed where one of the parties is a nonresident. Arcadia Mills v. Company, 89 N.H. 188; Lehigh c. Co. v. Company, 89 N.H. 274, 276.
The Trial Court has found that the tenants' plea of recoupment should not be allowed in this action. It is clear that the disallowance of the plea was not a technical ruling on pleading (Cf. Soble Inc. v. Company, 96 N.H. 279) but in effect was a determination that the tenants' claims could not be adjudicated conveniently in this action. The ruling was proper on this record and is supported by authority elsewhere. See Bach v. Quigan, 5 F.R.D. 34; Park Bridge Corp. v. Elias, 3 F.R.D. 94; Gabriel v. Borowy, 324 Mass. 231.
Exception overruled.
All concurred.