George v. Cahawba & Marion Rail Road, 8 Ala. 234

George v. Cahawba & Marion Rail Road

8 Ala. 234

| Ala. | 1845

GOLDTHWAITE, J.

1. The question in this case, of the right to set off the instalments, due to the Rail Road Company, by the plaintiff, against his action, is not one of difficulty. The general rule in relation to set off is, if the moneys sought to be recovered under a special contract, for damages, may be recovered under the common counts, then the defendant may set off. [Chitty on Con. 332; see also, McCord v. Williams, 2 Ala. Rep. 71.] Let us test the plaintiff’s special count by this rule. He does not pretend that any thing is due him for the services actually rendered, though the assertion is made, that he entered on the performance of his contract. The sole ground of his action is, that the defendants would not permit, or suffer, him to proceed, by reason of which, he lost the profit he otherwise would have made. It is impossible to say, that evidence of the violation of the contract in this particular, could be given in evidence on the common counts. Whe think it clear therefore, that a plea of set off, to the special count, would be considered bad if demurred to.

2. But such is not the condition of the record; issue was joined on the pica, and however irregular or insufficient, the defendant had the right to insist on evidence applicable to it. If then, the Court had gone no farther, than to refuse the plaintiffs motion to exclude the evidence of set off, it would be the same as Watson v. Brazeal, at this term, where we held, that the truth of the issue, and not its effect, was the matter to be ascertained by the trial. [See also, Purdom v. Hazard, 3 Porter, 43; Cullum v. Bank, 4 Ala. Rep. 21,] Independent, however, of the refusal to exelude *237the evidence of set off, the Court charged the jury, that the action was subject to, and could be, set off. The effect of this, was to preclude the jury from rendering a separate verdict upon the issues submitted to them, which they had the right to do, and which, if they had done, the injury arising to the plaintiff from the mispleading, might have been obviated, by rendering a judgment non obstante veredicto. We come to the conclusion then, that the charge of the Court, in this respect, is erroneous, and as injury has resulted to the plaintiff, the judgment, for this, must,be reversed.

3. It yet remains to consider the question made, with respect to the measure by which damages are to be ascertained upon this contract. It is perhaps impossible to ascertain any one rule which will cover all classes of contracts, in regard to the damages which may be awarded to the injured party; but we think it clear, the one proposed by the plaintiff, was not proper to the circumstances of the case, as disclosed by the pleadings, and we are entirely ignorant of the proof. If the work had been performed, a certain price was to have been paid, but this price is not the measure of damages, because it is evident, the cost of the work to the plaintiff, would necessarily have been something. The difference, then, between this cost, and the price agreed to be paid — in other words, the profits which he would have made, is the general measure by which to ascertain the damages. [Shannon v. Comstock, 21 Wend. 457.] This indeed, is the measure which the plaintiff himself has indicated, when he says, that by the defendant’s breach of the contract, he has been deprived of the profits and advantages which otherwise he would have acquired. There is no error in this particular.

For the error however already noticed, the judgment must he reversed, and the cause remanded.