The opinion of the court was delivered by
Coulter, J.
This is, in amount, quite a little case. But since it is regularly here, without elongating shadows, it must be ruled, as if it was bigger.
The act of Assembly which requires a defendant before a justice of the peace to set off his demand, if any he has, whether founded upon bond, note, penal or single bill, writing obligatory, book-account, or damages on assumption, is very broad, and, indeed, almost tautological; but exhibits the anxious desire of the legislature to embrace every kind of claim of which the justice then had jurisdiction, or which was given him by that act, usually called the $100 act, to the extent of $100. The words “damages on assumption” must necessarily apply to cases of unliquidated damages arising from contract. Because, if they were liquidated by the *363contract they would he clearly embraced by the previous description of demands founded on writing obligatory, as contradistinguished from bonds and single bills. There is hardly a peg to hang a doubt upon when the damages to the defendant arise from a breach of the same contract on which the plaintiff founds his claim, and is part and parcel of the res gesta between the parties. It is true, that in 3 Ser. & R. 388, it is ruled that the damages for breach of covenants are not of such a nature as to require the defendant to set them off under the 7th section of the $100 law. But at that time the law was not in good odor with the profession, and it was crippled wherever it might be done safely. But since that time, a more just and philosophical view of the improvements en-grafted on our system by the legislature of that day has been taken by the judiciary, and those statutes have been carried out in the spirit in which they were enacted ; that is, to simplify, expedite, and settle controversies, without denial or delay. Accordingly, in 4 W. & Ser. 290, the court held that the defendant may give in evidence as a set-off a special contract between him and the plaintiff, by which' the plaintiff promised to do certain work for the defendant, and did not do it, whereby the defendant is entitled to damages for the nonfeasance. And the same principle has been carried farther even in cases originating in court as to setting off damages. Thus, in 6 W. & Ser. 155, it was held that the defendant may not only defalcate a claim, founded on the contract on which the plaintiff sues, but also one arising from breaches of other contracts. I might cite other cases, but consider these sufficient to establish that the defendant may set off unliquidated damages for breach of contract, as a subsisting demand, at the time of the breach and determination of the party not to perform the contract. We now rule, that such damages being an existing demand which may be enforced by action, the defendant must set it off in an action before a justice of the peace, if it is under $100, or lose it, under the 7th section of the $100 act, like other demands therein mentioned. It is alleged for the defendant in error, that when the suit was brought before the justice for wages, the contract was broken by the plaintiff, he not having worked for the time of his engagement, nor one-fifth of it, but that yet defendant could not tell the extent of his damages until the expiration of the time of the engagement. But that is not so. Damages are for the refusal to perform the contract. What inconvenience was the plaintiff put to in getting another hand? That did not depend upon the fluctuation of wages during the time of the engagement, for they might fall as well as rise. They were to be estimated as all other damages for breach of contract are estimated: not with mathematical precision and certainty, • but according to the course of business and labor in the country.
The truth is, that Shoup, who sued for wages in the first suit, according to the evidence sent up, had no cause of action what*364.ever. He engaged on the 1st of April to attend a lock on the canal during the season, at the rate of $7 per month; hut went away before April was out, and refused to perform his contract. He had no cause of action. The defendant in that suit did not set up this as a defence. Nor did he set off the damages arising to him by reason of the inconvenience he suffered from the plaintiff’s refusal to perform his contract, but brings the present suit to recover damages. He is barred by the 7th section of the $100 act, and the court ought so to have instructed the jury.
Judgment reversed and venire de novo awarded.