McCullough v. Lewis

Stoker, J. This is a demurrer on the ground that the set-off is for unliquidated damages. The items composing the alleged set-off are described in the copy of the account attached to the answer, as required by section 122 of the code. They are for overcharges made by the plaintiffs: 1. As the factors of defendant in the sale of property consigned to them. 2. Eor disobeying his instructions in selling property consigned, at a less price than was limited. The code, we suppose, does not essentially change the com [566] monly-received idea of a set-off, which by our former practice was confined to wbat was termed liquidated damages. Although the claim must now arise on a contract, no greater strictness is required than was necessary before the code. The rule, “id certum, quod cerfum reddi potest” was applied', we believe, without exception, to all cases of this description. Whenever an action would lie upon any of the money counts, a set-off for a like demand may be pleaded by way of defense. One of my colleagues has very clearly stated his construction of the code on this subject in 1 Handy, 434, Evens v. Hall, and I fully concur in this opinion. We think that all the items embraced in the first division, are proper subjects of set-off'. But the items included in the second are without the rule. They would not furnish the ground for an action of indebitatus assumpsit, as a recovery must be had only upon a breach of contract first proved, and the damages to be assessed are not solely dependent upon any fixed element, to render them certain. Beside, the issue would become involved, and the trial of the case be necessarily greatly embarrassed. The same view is taken in 2 Cranch, 342, Winchester v. Hackley; 3 Wash. C. C. 359, Cheongwo v. Jones. As the demurrer is to the whole answer, it must be overruled. But the plaintiff will be at liberty to now move that the answer be made more definite and certain.