McCord v. Williams

ORMOND, J. — The contract which is set out in the bill of exceptions, might have shown that the plaintiff could not recover, if the corn and fodder, which it is said he furnished for the use of defendant’s negroes and horses, was furnished under the contract; but it is most obvious, that the defendant could not recover, in this action, damages for a breach of the contract on the part of the plaintiff. Yet this has, in effect, been done in this case by giving judgment against the plaintiff on the plea of set off. If it were admitted that the defendant could abandon that portion of the contract, by which the plaintiff agreed to clear twenty acres of land, it rvould be still a pure question of unliquidated damages. To show this, it is only necessary to refer to the charge of the court, which instructs the jury to enquire, whether theplaintiff had put in less crop for defendant with a view of increasing his mvn, and had applied the force of Love to his, plaintiff ’’s own crop, in an undue proportion, with a vieiv of increasing his own product, at the expense of Love, and that if such were the fact, -they might consider it in forming .their verdict. The damages resulting from the breach of a contract, are unliquidated, when there is [73] no criterion provided by the parties, or by the law for its ascertainment. Now, the damages which the defendant was entitled to, for a breach of this contract, depended on a great many contingencies, and facts which are to be made out by proof, which might influence and operate differently, on different minds. In a word, it was altogether uncertain, and could only be ascertained and rendered certain by the verdict of a jury, it was therefore unliquidated, and could not be the subject of a set off [see Dunn, use &c. v. Wheeler & McCurdy, 1 Ala. Rep. (N. S.) 645.] The judgment must be reversed and the cause remanded.