Bonaud v. Sorrel

By the Court. Lumpkin, J. delivering the opinion. Without reviewing the propositions laid down by the counsel for the plaintiff in error or the authorities by which he seeks to sustain them, we ask what equity is there in this bill ? The general rule is incontrovertible both at law and in equity that unliquidated damages, cannot be pleaded by way of set-off unless there is some understanding between the parties, express or implied, under which the defence can be let in, or some special case made by the bill, as the Insolvency, non-residence, &c. of the plaintiff: and nothing of this sort exists here. Indeed, we are at liberty to assume, what we suppose to be true in point of fact, that Sorrel resides in the city of Savannah; and is fully able to pay all damages which may be recovered against him by Bonaud. And the remedy of Bonaud at law is not only full and adequate, but even more complete than in equity. He had nothing to do, but to bring his action for damages on account of the alleged disturbance of his lease; and long before a recovery could have been had for the rent, he could have had his judgment to meet the plaintiff’s demands, that is, provided always, he was entitled to obtain a judgment. We can see serious difficulty and mischief resulting from the course contemplated by this Bill. Before the last installment for rent falls due, Bonaud might be evicted under paramount title; and what then would be the condition of the decree against him, for the whole amount of the rent [112] present and prospective? Again, to sbotv the injustice of such a procedure, blending a claim for rent with a claim for damages, Judge Fleming, very pertinently proposes the interrogatory, suppose Bonaud succeeds in establishing his claim, to $4,000 for damages, ought he not to be allowed to collect it forthwith ? And would it be right to deduct from that amount rent not yet due? And thus make the tenant pay in advance. So, on the other hand if 31011 do not deduct it, Sorrel will be injured for otherwise how 'can he get it, as he is under an injunction not to sue?” As to the other ground upon which the inteiposition of chancery is invoked, namely, that it will prevent a mulitplicity of suits, we do not feel its force. One suit will settle Bonaud’s claim for damages: and by paying the rent as it falls due, quarterly suits at the instance of the landlord, will be entirely prevented. It is supposed that the case in 2 Schoals and Lefr’y 403, note, is an authorhy in conflict with the general doctrine so strongly laid down by Chancellor Kent in 3 Johns. ch. Rep. 358, ib. 575, 576; 4 ib. 287 and by Chancellor Walworth in 8th Paige 597, that there is no case, to be found, where uncertain damages have been set off, growing out of a breach of covenant, there being no express or implied agreement growing out of the transaction, and no special cause shown. But in this very case, so confidently relied on, the arbitrators by their award ascertained the unliquidated damages And so Judge Story treats this exceptional case, in discoursing upon this subject. (Eq. Jur. p. 927 § 1436 note. Judgment affirmed.