88 Ky. 285 | Ky. Ct. App. | 1889
delivered the opinion of the court.
This is an action of assumpsit, brought by the appellees, Cooper & Co., against the appellants, Forbes & Bro., for the price of merchandise. The correctness of the claim is admitted by a non-denial, but the appellants sought to defeat a recovery by the. assertion of a larger claim, unliquidated in character, and for damages arising from the non-performance by the appel
Was it then available as a set-off? This presents the question, whether, upon the admitted facts of this case, it could be relied upon as a defense, although for unliquidated damages. The doctrine of equitable set-off existed long prior to the adoption of the Code; and it was well settled that a court of equity would apply it where the demands were connected, or where the one sought tó be set off formed the consideration of the other. The exception to this rule was that if the claim proposed to be set off was one of unliquidated damages, the court would not, on account of the connection between the demands, first liquidate the damages, and then make the set-ofiE, provided there
It was accordingly held by this court, in Williams v. Gilchrist, 3 Bibb, 49, and other cases decided prior to the adoption of our Code, and in which no extraneous circumstance was shown, such as insolvency, that an unliquidated demand could not be used as a set-off; and this was so even where such circumstance was shown, unless the demand was connected with the subject of the action. The reason for the rule' was to prevent confusion resulting from the trial of distinct matters in the same action. This, under the present practice, is frequently done, however, to prevent circuity and multiplicity of actions. Indeed, our Code of Practice, and the present mode of procedure, looks especially to this end.
Section 96 of the present Civil Code provides: “A set-off is a cause of action arising upon a contract, judgment or award in favor of a defendant against a plaintiff, or against him and another; and it can not be pleaded except in an action upon a contract, judgment or award.” This is substantially like the provision of our original Code of Practice, under which it was held, in Shropshire, &c., v. Conrad, 2 Met., 143, that a demand for unliquidated damages, although arising upon contract, could not be the subject of a set-off. In that case, while the claim attempted to be asserted as a set-off was distinct from the subject of
It is certainly unconscientious for an insolvent party to coerce the payment of his claim when he is owing the other party an equal or larger sum, and thus leave the ' latter remediless; nor should . a' non-resident be allowed, under like circumstances, to enforce, through the agency of the courts, the collection of his debt, and compel the other party to seek a foreign jurisdiction for relief, and then perhaps find the debtor insolvent. If the object of litigation be the attainment of justice, ‘assuredly such results should be prevented. Indeed, the doctrine of equitable set-off to the extent it was formerly applied, was based upon moral justice, and to meet such cases as the above, thus preventing wrong. It was then not uncommon to stay an insolvent or non-resident debtor in the collection of his claim until damages, to which the complainant might be entitled against him, were liquidated under the order of the Chancellor, and then apply them in satisfaction of his independent debt. In some of the -States it has been held that the resident debtor may proceed by attachment in an independent suit against his non-resident debtor, and attach the money owing by him in his own hands, and then answer his adversary by relying upon the attachment. It has, however, been held by other courts that he could not do so, because it would bring him within the rule that a party can not sue himself. .Numerous cases, however, may be found in which it
The object of rules of practice is to secure justice, and while we think great respect and regard should be shown for the established ones of remoter times,..
Judgment reversed, with directions to overrule the demurrer to the answer as amended, and for further proceedings consistent with this opinion.