Raymond v. Varnum

Mr. Justice Browh delivered the opinion of the court. As the parties differ as to the pleadings on which this cause was tried in the court below, we have at some length set forth in the preceding statement those pleadings and the orders made concerning them. It appears plainly enough that the case went to trial under: First, plaintiff’s declaration in debt (whether “amended” or not, according to the description in the order of July 2, 1907, there is no way of telling from this prcecipe record), which contained a special count on the Iowa judgment involved, but did not contain any common counts, such common counts being withdrawn or “dismissed” on February 8, 1908, and the pleas made expressly to them of course falling with them; second, defendant’s plea of nul tiel record to the special count filed May 18,1904, with a proper replication by plaintiff “prout patet recordum;” third, defendant’s plea filed May 18, 1904, that there had been no service of process on the defendant in the suit in which said Iowa judgment had been rendered, and a traverse thereof by the plaintiff, and a practically identical plea and traverse filed July 10, 1907. (The “nil debet” inserted in the plea was no answer to this count of the declaration and must be disregarded.) No attempt was made by the defendant at the trial to prove his plea against the case made by the recital of service in the authenticated copy of the judgment offered. The plea of nul tiel record raised, as the Supreme Court says, in Waterbury Nat. Bank v. Reed, 231 Ill. 246, “only one question, and that is whether there is a record of a judgment corresponding to that set out in the writ, and that quéstion is one to be determined by the court from an inspection and examination of the record itself.” As the pleadings stood, therefore, the court did not err in directing a verdict for the plaintiff. There are other antecedent errors complained of. One is in the striking of certain of defendant’s pleas on February 8, 1908, and April 17, 1909, as detailed in the statement prefixed hereto1. Even if this question had been properly preserved by an exception shown by the bill of exceptions, it would have availed defendant nothing. There is nothing showing leave to file said pleas, and the action of the court was within its discretion. All that could be claimed as material in the said pleas was however before the court in pleas that were allowed to be filed and to stand and which were successfully demurred to as hereafter recited. Another alleged error was the refusal to defendant on April 28, 1909, of leave to file “a plea of payment and discharge.” This was almost five years after the suit was begun, on the eve of trial, and after the defendant had on six different dates, authorizedly and unauthorizedly, filed pleas. We do not think the court abused its discretion in refusing the leave. Nor do we believe that it did so on February 15, 1908, in refusing leave to file “an additional plea”; but in any case we could not judge it to have done so, for the ‘ ‘ additional plea” is not preserved or described in the record before us. There can be no serious claim that the demurrer to a plea of nil debet to a declaration in debt on a judgment was not properly sustained. The only question, therefore, which rises to any importance in the case before us is whether the court rightly sustained demurrers to various pleas of set-off of the defendant, which sought to set off damage suffered by him from the alleged violation of a duty owed to him by the plaintiff in relation to certain collateral notes of a third party, placed by him in the plaintiff’s hands contemporaneously with the execution and delivery by him to the plaintiff of the notes sued on in Iowa and made the basis of the Iowa judgment. We think the demurrers were properly sustained. In order to make a plea of set-off available, the damages to be set off must be liquidated or they must spring from the same transaction that the action is brought on. 'The defendant claims that in the case at bar the damages alleged by him in the way of set-off are liquidated and also that they spring from the same transaction as the debt sued on. We hold to the contrary as to both propositions. Notwithstanding the statement in plaintiff in error’s brief regarding the quality of the intellect that can see any difference between a judgment and the obligation on which that judgment is founded, we continue to think that there is, in deciding in the case at bar whether the set-off pleaded arose “out of the same transaction” as the plaintiff’s claim, a great difference between the notes and the judgment founded on them. It is a difference not in form merely, but in essence. The defendant had his day in court on the “transaction” in which the notes were given when he was sued in Iowa. He mig*ht then have pleaded his set-off had he wished. , He chose to make default, and an entirely new form and character of indebtedness arose from the “transaction” in the Iowa court which resulted in a judgment. If a man might in answer to a suit on a judgment plead whatever might, by way of set-off or recoupment, have been a defense to the suit in which the judgment was obtained, there would be a great loss of finality in litigation. Defendant calls attention to section 33 of the Practice Act, which provides that “demands upon simple contracts may be set off against demands upon sealed instruments, judgments and decrees.” But this provision has never been construed to change the rule that unliquidated damages may not be set off against a judgment, or, in other words, to contain any implication that the “transaction” in court, out of which a judgment or decree arises, can have in it the basis of any claim which can be made in set-off. It may be that damages arising out of the same judicial “transaction” which produced the judgment are conceivable, but none such suggest themselves to our minds as possible. The damages to be set off against a judgment then must be “liquidated,” which brings us to the determining question in this case. As we have said, we do not regard as “liquidated” those claimed by the defendant because of the alleged breach by the plaintiff of a contract “to hold” certain notes deposited with him “according to the law and usage governing the holding and receiving of collateral security.” We think that the Supreme Court of Michigan was right in Mitchell v. Shuert, 16 Mich. 444, in shying that such damages are “necessarily unliquidated,” a conclusion for which the reasons in an analogous case are thus set out by the report of an arbitrator, affirmed by the Court of Appeals of Virginia in Harrison v. Wortham, 8 Leigh 296. “I know of no better rule as to the damages which may be the subject of set-off than this, that they must be liquidated, and (where they do not grow out of a specialty) such as indebitatus assumpsit will lie for. In this case, it seems to me, the damages could not be recovered in an action of assumpsit for the payment of .money; but the action would be one setting forth the implied undertaking to use due care in the collection of the bill; charging a breach of that undertaking, and a consequent loss to the plaintiff, and claiming damages for that loss. These damages must be regarded as unliquidated and uncertain.” This construction of the term “liquidated damages’’’ does not differ from that adopted by the Appellate Court of the Fourth District in Horn v. Noble, 95 Ill. App. 99, and by this court in Smith v. Billings, 62 Ill. App. 77, and by the text writers in 19 Amer. & Eng. Encyc. of Law, p. 395, and 24 Amor. & Eng. Encyc. of Law, p. 511. The allegations of the pleas demurred to, that the notes left as collateral were of a certain amount and represented “honest money due” to the defendant from their maker, and that the maker had sufficient property and means when they came due so that he could have been compelled to pay said notes, and that he afterward became bankrupt and fled, are not sufficient to make certain and liquidated what is “necessarily unliquidated” and dependent on the judgment of a jury upon a trial. It would be for them to say, under all the circumstances, what damages the plaintiff had inflicted on the defendant, not by default in the payment of a stipulated sum of money, but by breach of an obligation to carry on certain proceeding's, legal or otherwise, the proper nature of which would be a still further object of investigation. The judgment of the Circuit Court is affirmed. Affirmed.