139 Va. 612 | Va. | 1924
delivered the opinion of the court.
On November 6, 1920, November 20, 1920, and December 2, 1920, Joseph H: Baker & Company, Inc., the petitioner (hereafter referred to as defendant), purchased from George D. Hartman, the appellee (hereafter called the plaintiff), one carload of potatoes — a total of three cars.
The two cars bought in November were paid for before the last car was purchased. Each sale being an independent transaction, with no connection save that they were bought by the same corporation, from the same party.
The defendant refused to pay for the third and last car unless plaintiff would allow certain damages'claimed to have been sustained by reason of the bad quality of the potatoes shipped in the first two cars on November the 6th and 20th. A motion to recover the amount due was brought in the Circuit Court of Accomac county, which resulted in this writ of error. A special plea setting up the items of defense above referred to was in effect rejected by the court, “except in so far as the items of setoff claimed in said plea relate to the car of
It is a concessum in the case, that the answer to this question depends upon whether or not the damages set up in the plea are liquidated or unliquidated. If liquidated, they may be recovered in this action; if unliquidated, they cannot be. Virginia Code, 1919, section 6145.
Richmond College v. Scott-Nuckols, 124 Va. 342, 98 S. E. 4:
“It is well settled in this State,” says Prentis, J., “that the defendant cannot avail himself of setoff and counterclaim under that section (3299), unless such claim grows out of the contract sued on.”
It is not always easy to determine with accuracy the point where unliquidated damages terminate and liquidated begin, but we think a brief consideration of some of the items set up in the plea will render it comparatively easy in this case to determine in which classification they belong.
“Loss account frosted and No. 2 potatoes. — $109.70
“Charged back to you, account of condition of potatoes in this car and back haul of same account of rejection.” (Sundry items among them) “labor at Norfolk. reworking .................................................. 57.75
“Loss of rotten potatoes, 46 bags, $2.37________ 109.02
“Labor paid Haycock & Lewis account of sorting out frosted and cull potatoes........ 51.50
“Profits on ear..............................................- 71.94”etc.
The damages demanded in the plea are either due to the inferior quality of the goods contracted for, the extent of the deterioration, and amount of damages resulting therefrom, being subjects of inquiry and determination by a jury, or are such as are claimed to be the result of the shipments of inferior goods, namely: “Profits on car $71.94” which was never sold, and, therefore, no profits actually ascertained.
As was said by Judge Sims in New Idea Co. v. Rogers & Sons, 122 Va. 65, 94 S. E. 354:
“It is true that if the amount of the claim of the defendants is so unliquidated that it cannot be ascertained by computation or calculation from definite data supplied by the evidence, and lies in mere opinion, ‘as, for instance, damages for not using a farm in a workmanlike manner; for not building a house in a good and sufficient manner; on a warranty for the sale of a horse; for not skillfully amputating a limb; for carelessly upsetting a stage, by which a bone is broken; for not making repairs to a dwelling house; for unskillfully working raw materials into a fabric; and other cases of like character, where the amount to be settled rests in the discretion, ■ judgment or opinion of the jury,’ such claim cannot be setoff under such statute.”
Counsel for defendant relied upon the case of Richardson Construction Co. v. Whiting L. Co., 116 Va. 493,
“The amount that the vendee is entitled to recover under the circumstances mentioned is as susceptible of certain and definite ascertainment and proof as is the price agreed upon between the parties. It does not rest upon mere opinion but upon existing facts that furnish a basis for calculation and computation. The law implies a promise on the part of the vendor to repay the ■ money which the vendee has been compelled to pay for him, and in such case indebitatus assumpsit will lie.”
But that is far from the facts as presented by the record in the case under consideration.
Here we have such items as:
“Labor at Norfolk account of rots and frosted,”
“Loss account frosted and No. 2 potatoes” when only No. 1 was bought,
“Profit on car” never sold,
“Charged back to you, account of condition of potatoes in this car and back haul of same account of rejection.”
That these and many other entries of like import set out at length in the plea are speculative, uncertain and largely dependent upon the wisdom and judgment
Affirmed.