| Ill. | Jan 15, 1862
The first question presented by this record, is, whether the damages arising from a breach of this contract can be recouped, in an action upon the agreement. It is urged, that inasmuch as complainants held the obligation of intestate and Scott, for the return of the mill in the same condition, that damages resulting from a failure to return it, according to the agreement, could not be set off against a recovery for the price of the ties by Fincher. The answer to this position is manifest when we consider, -that by our statute all bonds executed by several obligors are made joint and several. Upon the occurrence of a breach, the obligees might have maintained either a joint or a several action upon it, at their option. It then follows, that if complainants might have recovered on this bond against Fincher alone, for a breach, they had the undoubted right to recoup such damages, in the suit at law by Fincher, for a recovery of the price of the ties, if they were of such a character as is authorized in our statute.
But it is, however, urged that these damages were unliquidated. Our statute seems to make no distinction, as it allows a set off of claims or demands. It has not limited the right to liquidated claims or demands, and that damages for a breach of the condition of the bond, was a claim or demand, there can be no question. That the claim or demand should relate to the transaction out of which the controversy has grown, where the damages are unliquidated, seems to be the construction placed upon the act. It was held by this court, that unliquidated damages arising out of the same transaction, may be set off under the statute. Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckells, 3 Scam. 300; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15. The language of our statute is different from the British act, and the adjudications under their statute, are not authority uuder ours. We regard the cases referred to, as decisive of this question.
It was insisted upon the trial, that it fails to appear that the alleged breach of the condition of the bond occurred before the suit at law was instituted by Fincher. The complainants when they filed their bill, undertook to show such a case as entitled them to the relief sought. The bill alleges, that there had been a breach, but whether before or after the institution of the suit at law does not appear. For aught that appears in the bill, the damage had been sustained before the suit was instituted at law, and if it was, then complainants had a complete remedy in that action by setting it off against that recovery. In the absence of an allegation to the contrary, it must be inferred, that the breach had occurred before that action was commenced, as the complainants have certainly presented all the facts which entitle them to relief. If the breach had been subsequent to bringing that suit, it would no doubt have been alleged. But even if that would have entitled them to the relief sought, which we by no means admit, in the absence of such an allegation, the complainants are not entitled to relief.
Having failed to avail themselves of their defense at law, a court of equity will not interpose to afford such relief. A party having an opportunity to interpose his defense at law, is estopped from seeking relief in equity, unless he can show that he was prevented doing so by unavoidable accident, mistake or fraud. It is the policy of law to end strife, and when parties have had an opportunity in a court to fully and fairly present their claims, and fail to do so, they are barred from resorting to a different tribunal for relief.
For the want of equity on the face of this bill, the’ court below did right in sustaining the demurrer, and dismissing the bill, and the decree is affirmed.
Decree affirmed.