Frick v. . White

Lott, Ch. C. There is no ground for the reversal of the judgment appealed from in this case. It appears from the facts alleged and admitted in and by the pleadings: 1st. That the plaintiff, as assignee of Davis, Pales & Company, had, on the 31st day of December, 1868, a valid liquidated claim and good cause of action against the defendants for the sum of $602.41. 2d. That the defendants before and on that day had a valid claim and good cause of action against the said Davis, Pales & Company for a- breach of contract entered into on the 28th day of October, 1868, for the sale and delivery to them of 400 tons of coal, at six dollars per ton, within a reasonable time thereafter, no specified time being named of designated for such delivery; and 3d. That the price or value of said coal increased after the making of such contract, and on or before the said 31st day of December, 1868, to the sum of $7.50 per ton. *107 The question is thereby presented whether the said claim or demand, in favor of the defendants, against Davis, Dales & Company can be applied either as a counter-claim or as ail offset against the said claim and demand of the plaintiff against them. The courts below held, and properly, that it could not. It was not good as a counter-claim, because the defendants had no cause of action or valid claim against the plaintiff for which a judgment in their favor could be ordered against him personally. There was no contract between them for or in reference to the coal mentioned in the answer. (Code, § 150, and Vassar v. Livingston, 13 N. Y., 248.) Eor was it good or available as a set-off to the plaintiff’s demand. Assuming that the breach of the contract alleged in the answer constituted a good cause of action by the defendants against the plaintiff’s assignors, before the assignment of their demand to him, and was a valid and subsisting claim at the time of such assignment, it was not a debt, but a claim only, for unliquidated damages. It is true that the answer states that the coal rose in value to the sum of $7.50 a ton on or before the 31st day of December, 1868, but there is no allegation to show whether such increase took place before or after, or at the time the coal was deliverable. There is, therefore, no basis by which the amount of the defendants’ claim was capable of being ascertained by calculation. It is also true, that it is alleged in the answer that by reason of the neglect and refusal of Davis, Dales & Company came the rise in the value of the coal as above mentioned; the defendants suffered loss and damage in the sum of $600 before the time of the assignment by that firm of their claim to the plaintiff. But that is, at most, only a deduction or conclusion resulting from and based on the previous statements, which, so far as it depended on the use in the value of the coal, fixed and established no basis for ascertaining those damages. It can, however, not be considered more than an allegation of a claim to compensation to that amount by *108 reason of the breach of the contract referred to, which could only be reached through the intervention of a jury by an •examination of witnesses to establish facts by means of which the damages could be ascertained. The amount demanded was in any view of the facts alleged not liquidated or capable of being ascertained by calculation. It follows, from what has been said, that the judgment appealed from should be affirmed with costs. For affirmance, Lott, Ch. C., Johnson and Gray, CC. For reversal, Reynolds and Earl, CC. Judgment affirmed.