McCabe v. Winship

NELSON, District Judge. Where the defendant could waive the tort, and sue for the value of goods converted, he can plead a set-off to an action ex contractu. The bank-rppt law recognizes such a claim, which is provable, section 19, Bankruptcy Act [of 1867 (14 Stat. 525)]; and the value of the property is the measure of damages, and is as certain as in any action to recover for the non-payment of a debt. As stated by Mason, Senator, in Butts v. Collins, 13 Wend. 139, the rule is quite general that a demand sounding in tort cannot be set off to a demand in contract; but it is equally true that in a variety of cases there is an election of actions, and the tort can be waived; and it is the better opinion at this day, in such cases a set-off will be allowed. The rule is this: where the set-off is founded in a duty which the plaintiff owes the defendant, as, for instance, the duty to deliver property as bailee, the wrongful act can be waived anda set-off is proper; so in all cases where a price or value is set upon the thing in which the offence is committed; but where the cause of action is a tort (“supposed to be by force against the' public peace”), then the wrongful act cannot be waived — instance, actions for assault, false imprisonment, nuisance, etc. To forbid [1225] an election of .actions and set-off, “the injury must he of that kind by which the offender gains nothing at the expense of the sufferer, and damages as a reparation for the injury must be assessed by estimates and opinion of the jury.” In this case the bankrupt was in duty bound to deliver the wheat when demanded. and a set-off was proper. [See Case No. 8,667.] Dixon. C. J., reached the same conclusion in an able opinion (33 Wis. COO), and referring to the note of Mr. Hill in the report of Putnam v. Wise, 1 Hill, 234, concurs in the views there expressed. The doctrine of set-off as allowed in this case was recognized by the U. S. supreme court (Allen v. U. S., 17 Wall [84 U. S.] 207), and by Walworth, Ch., in a very forcible opinion (6 Paige, 227). An examination of the following authorities is profitable: 1 Cowp. 372, 491; 1 Taunt. 112; 3 Taunt 274; 5 Taunt. 56; 8 Taunt. 21; 3 Term R. 560; 15 Wend. 58; 1 Hill, 234, note; 6 Paige, 227; 13 Wend. 156; 33 Wis. 600. Motion denied.