Marks v. American Furniture Novelty Co.

Mr. Presiding Justice Holdom delivered the opinion of the court.. Abstract of the Decision. 1. Set-off and becotjpmbnt, § 9*—when evidence shows that transactions set up in plaintiff’s and defendant’s pleadings are separate and distinct. In an action to recover for merchandise sold and delivered by plaintiff’s assignors to defendant, in which defendant interposed, a set-off for an alleged breach of a contract which defendant claimed to have made with plaintiff’s assignors for certain merchandise, evidence held sufficient to sustain a finding that the transactions set up in plaintiff’s statement of claim and defendant’s set-off were separate and distinct transactions. 2. Set-off and becotjpmbnt, § 40*—when claim, of set-off not established. In an action to recover for merchandise sold and delivered by plaintiff’s assignors to defendant, evidence held insufficient to sustain defendant’s claim of set-off. 3. Set-off and becoupment, § 10*—what may not be subject of set-off. A claim for unliquidated damages may not be the subject of a set-off where it in no way grows out of or is connected with the cause of action of plaintiff. 4. Damages, § 81*—when are unliquidated. Damages for loss of profits which are arrived at by computing the difference between the contract price and the price at which goods are claimed to have been resold are unliquidated. 5. Damages, § 81*—what constitute unliquidated. Unliquidated damages are such as are unascertained, as those arising out of a breach of a contract where the amount of damages has not been determined by agreement.