Manning v. Eaton

The opinion of the Court was delivered by Sergeant, J. Although this is not a case where the plaintiff’s claim is reduced by set off, and on which costs therefore follow a verdict less than 100 dollars, yet it would seem to fall within the same principles. The plaintiff’s father and brother were indebted to the defendants in several sums of money for merchandize sold t.o them by the defendants, the amount of which was unliquidated. The plaintiff afterwards sold to the defendants cattle and other articles, for which they agreed to pay her a sum considerably exceeding 100 dollars, deducting the amount due to them from the plaintiff’s father and brother. Under this contract it was the duty of the defendants to ascertain the amount due to the father and brother, and to pay the balance to the plaintiff. After deducting that amount, they were to be the actors; it was their duty to be ready to pay the plaintiff when required; and being the creditors of the father and brother, they had the means of ascertaining and determining their debts; whereas the plaintiff was a stranger to the accounts between the parties, and had no power to liquidate them. Nor could she give the defendants a credit for any certain amount before such liquidation took place, without risk. She was therefore under a necessity of suing for the whole sum, in order that the amount to be deducted should be ascertained by legal course; and the case falls within the principle settled in cases of set off. Judgment affirmed.