| Ala. | Jan 15, 1845
— Under our statute it has been held, that unliquidated damages are not the. subject of a set off. [Dunn use, &c. v. White and McCurdy, 1 Ala. Rep. N. S. 645.] “ The damages resulting from the breach of a contract, are unliquidated, when there is no criterion provided by the parties, or by law, for its ascertainment.” [McCord v. Williams and Love, 2 Id. 71; see Clay’s Dig. 338, § 141; Reab v. Mc-Allister, 8 Wend. Rep. 112; Butts v. Collins, 13 Id. 139; McDonald v. Neilson, 2 Cow. 139" date_filed="1823-12-15" court="None" case_name="M'Donald v. Neilson">2 Cow. Rep. 139; Hepburn v. Hoag, 6 Cow. 613" date_filed="1827-02-15" court="N.Y. Sup. Ct." case_name="Hepburn v. Hoag">6 Cow. Rep. 613; Gordon v. Bowne, 2 Johns. Rep. 150, 155,]
The writing offered as a set off, does not ascertain the value of the'corn, which the plaintiff agreed to deliver to the defendant ; nor does the law fix the price, or furnish a criterion by which it may be settled. The case. then cited, from 1 and 2 Ala. Reports, are conclusive to show, that the decision of the Circuit Court in rejecting it as evidence, was entirely correct.
It cannot be assumed, that if the maker of a promissory note makes a partial payment on it, before its maturity, that he is entitled to interest upon the amount paid, up to the time the note become due. A pariy is not bound to pay his debt before the expiration of the term of credit for which he has stipulated ; if he does, he cannot as matter of right, claim a deduction for interest. If the debtor pays money in anticipation of the appointed day, without an agreement either express, or implied, between himself and the creditor, his debt will be extinguished pro tanto, and no more. The creditor may prefer to have his money at the time provided for its payment, to a less sum at an earlier day; if so, it is his right, and he may insist on being paid in toto.
It follows, that the law was correctly adjudged; the judgment of the Circuit Court is therefore affirmed.