68 So. 890 | Ala. | 1915
The bill in this cause was filed on the equity side of the circuit court of Chilton county to secure the benefit of a set-off against a judgment defendant had obtained against complainant. Complainant avers that his claim was a valid and subsisting claim against defendant at the time the latter filed his suit in the law court and at the time the judgment was rendered. He
(1) No reason of equitable cognizance is shown by the bill why complainant did not interpose his claim of set-off in the action at law. On the bill as it stands it must be presumed that he merely neglected to do so. As for aught appearing he might have availed himself of his set-off, and such being the case, it seems to be settled by authority and the consistent practice of this court that the insolvency of the plaintiff in judgment, defendant here, without'more, does not furnish sufficient ground for equitable interference. This rule, and the reason for it in cases of this character, are stated at length in Foster v. State Bank, 17 Ala. 672, and Pearce v. Winter Iron Works, 32 Ala. 68. So far as we have been able to learn, the rule there laid down has been since followed in this court. — Nelms v. Prewitt, 37 Ala. 389; Watts v. Sayre, 76 Ala. 397; Owen v. Gerson, 119 Ala. 217, 24 South. 413; Evans v. Mackey, 189 Ala. 283, 66 South. 3.
Complainant (appellant) relies upon a line of cases beginning with T. C. & D. R. R. Co. v. Rhodes, 8 Ala. 206, and running down to Dunham Lumber Co. v. Holt, reported in 123 Ala. 336, 26 South. 663, and 124 Ala. 181, 27 South. 556. None of these cases impair in the least the doctrine that equity will not interfere to establish a legal set-off against a judgment, where the judgment debtor had the opportunity but failed to interpose his claim of set-off in the action at law. For example, in the first-mentioned case complainant’s claim was not available under the statute of set-off in the law court, for the reason that it was not a subsisting demand
(2) But appellant contends that his claim was not the subject of set-off in the law court, because it sounded in damages merely. — Code, § 5858. “A debt or demand, ‘not sounding in damages merely,’ is one which, Avhen the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard.” — Code, § 5859. The damages claimed by way of set-off are alleged to have accrued to appellant by reason of defendant’s drunkenness and lack of diligence in the execution of a contract by which appellant let to him a farm, to be cultivated on shares, and cattle and hogs, the increase of Avhich was to be divided between them. Defendant agreed to devote his entire time to the farm and stock and to reimburse appellant for any injury done or suffered on account of his negligence or mismanagement out of his share of the crops and stock. The averment is that the crops failed for lack of attention, and that the cattle and hogs were neglected, so that some of them died, while the r§st had to be disposed of at a great loss. No exemplary or punitive damages are claimed or claimable.
Section 5859 of the Code defines the phrase “sound
Affirmed.