Slaytor-Jennings Co. v. Specialty Paper Box Co.

The opinion of the court was delivered by Garretson, J. This is an appeal by the defendant from the judgment of the Second District Court of Newark, under the provision of an act of the legislature of April 3d, 1902. Pamph. L., p. 565. The grounds of the appeal are'—-firsl, that the plaintiff, being a foreign corporation, could not maintain the action ;• second, that the defendant should have been allowed to set off a claim for unliquidated damages against the plaintiff’s demand. Order for the goods, the price of which is the subject oL' the suit,, was given by the defendant to a selling agent or broker for the plaintiff and several other firms or corporations. The order was placed with the agent at the defendant’s office in Newark, and the agent did not, at that time, disclose for whom he was acting. Subsequently the order was mailed by the agent to the plaintiff at their office in [215] the city of Boston for tlicir acceptance, and was accepted by the plaintiff. The contract was executed in Massachusetts, hence no corporate act was shown to be done in New Jersey. In Faxon Co. v. Lovett Co., 31 Vroom 128, this court construed the ninety-seventh section of the “Act concerning corporations” (Revision of 1896; Pamph. L., p. 307) to prevent foreign corporations, without complying with its provisions; to maintain suits in this state on contracts made outside of the state since the passage of the act. The contract in this case was not made under the order obtained by the agent until it was accepted in Massachusetts. Delaware and Hudson Canal Co. v. Mahlenbrock, 34 Vroom 281; 13 Am. & Eng. Encycl. L. (2d ed.) 869, 870. The second ground of appeal is that the judge of the District Court overruled a set-off or counter claim of the defendant against the plaintiff for Unliquidated damages. It is a general rule that unliquidated damages cannot be set off. Edwards v. Davis, 1 Halst. 394; Smock v. Warford, 1 South. 306; Parker v. Hartt, 5 Stew. Eq. 225, 230. ■The language of the sixtieth section of the District Court act (Pamph. L. 1898, p. 574), “if the defendant have any account or demand against the plaintiff he shall be permitted to discount or set off the sanie against the account, debt or demand of such plaintiff,” establishes no 'different rule. This only means a claim having the characteristics denoted by the word “set-off,” one of which is its liquidated character. The act concerning set-off '(Gen. Stat., p. 3109, § 1) is expressly limited to liquidated damages. Judgment will be entered for the plaintiff, with costs.