59 Pa. 450 | Pa. | 1868
The opinion of the court was delivered, January 5th 1869, by •
The claim of the plaintiff below was on three promissory notes given by the defendant as part payment of the purchase-money of a colliery. The defence set up was that the plaintiff had violated his agreement by not delivering possession of the colliery according to its stipulations. This defence was not given under the pleas of non assumpsit or failure of consi
Let us consider how this would have been if the claim of the plaintiff and the counter claim of the defendant had arisen from two separate and independent transactions. It has been sometimes broadly said in our books, following the wake of the English courts in the construction they have put on their statutes, that unliquidated damages cannot be set off. It has been observed more than once, however, that our Act of Assembly was twenty-four years before the British statute of 2 Geo. II., and that the words of it are more comprehensive. The British statute enacts, “ that when there are mutual debts between the plaintiff and defendant, one debt may be set off against another.” It has been accordingly settled in that country that nothing can be set off but debts, demands for which debt or indebitatus assumpsit may be maintained: Howlet v. Strickland, Cowp. 56; Weigall v. Waters, 6 T. R. 488.
But the act about defalcation of 1705, 1 Sm. Laws 40, enacts “ that if two or more dealing together be indebted to each other in bonds, bills, bargains, promises, accounts or the like, and one of them commence an action against the other, it shall be lawful for the defendant to plead payment of all or part of the sum demanded and give any bonds, bill, receipt, account or bargain as evidence.” The construction of our courts has accordingly been more liberal and it may be laid down as established, by a series of unshaken cases, that unliquidated damages, arising ex contractu from any bargain, may be given in evidence under our act. When the damages arise from a tort, they certainly cannot be allowed, and perhaps there may be cases of contract where the damages are not capable of liquidation by any known legal standard, which are not within the spirit of the act: as, for example, breach of a contract of marriage. In Nickle v. Baldwin, 4 W. & S. 290, the plaintiff sued on a book account. The defendant offered to defalk a claim of damages arising from the violation of a contract by the plaintiff to saw certain logs for him. The set-off was sustained. “The defendant,” said Sergeant, J., “has a remedy in assumpsit for a breach of the contract of the plaintiff to saw these logs on the shares; and in such an action the damages are, in a certain sense, liquidated; that is to say, there is a measure within which they must be. restrained. For the defendant would not be permitted, in an action of assumpsit for the breach of the contract, to recover more than the loss he had sustained by that breach,
But if this would have been lawful when the claim of the plaintiff and the cross-demand of the defendant grow out of separate and distinct transactions, a fortiori it ought to be so when they both grow out of the same transaction. There is certainly nothing in the words of the act to prevent it, and the. symmetry of the system imperatively requires it. Every reason which can be imagined is in favor of the same jury passing on the whole case; and many reasons which cannot be urged in the case of distinct claims. Why should a defendant be precluded from taking such a defence in an action growing out of the same cause, unless he agrees to give up all claim he may have beyond the plaintiff’s demand, or be driven to another action for the surplus ? It may well be questioned whether, having availed himself of the breach to defeat the plaintiff’s action, he would be permitted to set it up as the ground of a separate action to recover over and above what the first jury had allowed him. Yet if he cannot, he must give up the defence altogether and resort to a separate action. This is certainly in the teeth of the policy of the statute. Suppose a contract for the sale and delivery of one thousand bushels of wheat at a certain price, for which a note is given, and the wheat is never delivered at all. Is it possible that in an action on the note, the defendant cannot show, not only that the plaintiff has no right to recover, but that he, the defendant, has suffered damages by the plaintiff’s violation of contract for which in a separate action he would be entitled to a verdict for damages ? Must he be driven to a separate action ? Wo doubt, in such ease, if the defendant
Judgment reversed, and now judgment on the verdict for the defendant for $450, with interest from December 3d 1855.