Stevens v. Able

Set-Oee; Unliquidated Demamds, arising JEx Contractu. In this state, any cause of action arising from contract, whether it be for a liquidated demand, or for unliquidated damages, may constitute a set-off, and be pleaded as such in any action founded upon contract, whether such action be for a liquidated demand, or for unliquidated damages.

Error from Jachson District Court. Action by Able to recover a balance of $100 due him upon the sale of certain cattle. Stevens filed a bill of particulars, alleging as a defense, by way of set-off, “ that on or about the 24th of February, 1873, he purchased of Able a certain lot of hogs, to be not less than fifty nor more than fifty-five; that said contract was in writing, signed by Able; that at the same time Stevens paid to Able upon that said contract and purchase, $25; that the hogs were to be delivered by Able to Stevens in May 1873, at such time as Stevens might deem proper to receive them, at the weighing-scales of A. G. Campbell, near Circleville; that Stevens was to pay Able for the said hogs upon delivery three cents per pound gross; that on or about the 27th of said May Stevens demanded the hogs of Able, and requested him to deliver them as per contract, which Able refused to do,” for which Stevens claimed $150 damages. The district court, at the April Term 1874, refused to hear any testimony in support of this claim, and gave judgment in favor of Able. Stevens brings the case here on error. The code permits a cause of action arising on contract to be set-off, without distinguishing between the kind or nature of such cause of action. It cannot be the intention of the code to allow a plaintiff to set up two or more causes of action in his petition, and then confine a set-off to a limited class of contracts. (Code, §§ 94, 96, 98.) The language of the code includes, as matters of set-off, every kind of cause of action, liquidated and unliquidated, which can arise upon contract; and there seems to be no good reason for limiting its operation to liquidated damages, so long as the statute does not so provide. 1 Nash’s PI. and P-rac., 720; 22 Ohio St. 297. The manifest policy of the code is to obviate such circuity, of actions, for it provides, (§96,) if the defendant omit to set up a counterclaim or set-off he cannot recover costs against the plaintiff in any subsequent action therein. It is the only manner in which the spirit of the statute can be made available without another action. 20 Ohio St. 38,54. Plaintiff in error does not seem to discriminate between a counterclaim and a set-off. In his bill of particulars he calls the matters which he sets up as a defense, a “set-off, or counterclaim.” A counterclaim is defined by § 95, and a set-off by § 98 of the code. The mere calling of the facts set up as a defense, one or the other, will not make them so. The pleading filed by Stevens was not a counterclaim, because it did not arise out of the contract or transaction set forth in the petition as a foundation of plaintiff’s claim, or connected with the subject of the action. If it had, it would have been good, whether the damages claimed were liquidated, or unliquidated. But plaintiff in error now claims that it is purely a “set-off” which he pleads. A set-off is allowed •only when the demand to be set-off is liquidated, or capable of being ascertained by calculation. Sedg. on ■ Dam. 502; "Waterman on Set-off, 328, 333; Barbour on Set-off, 76; 3 Hill, 171. Unliquidated damages claimed have never been permitted to be set-off, unless expressly, allowed by statute. Sedg. on Dam. 488; 13 Wend. 139, 156; 2 Cowen, 140; 10 S. & R. 14; 9 Peters, 319; 6 Cowen, 613; Waterman on Set-off, 147, 333. “It is now believed that set-off must be limited as heretofore, when the sum claimed constitutes a liquidated demand.” 1 Nash PI. 721.