Deming v. Kemp

By the Court.

This is an action brought to recover the value of sixty barrels of bone black, alleged to have .been sold by them to the defendant at a fixéd price. The *152answer contains a denial of the right of the plaintiffs to recover, which denial is equivalent to the old general issue. The answer further sets up that the article, if ever delivered, was delivered in pursuance of a contract made some time previously, and that, under this contract, bone black was to be delivered at different times, in different quantities, the present action being for the third delivery; that the article delivered in the first instance was of an inferior quality, and the defendant seeks to set-off in this action the damages arising from that cause. The answer does not allege that there was any defect in the article for which this action is brought. Upon the trial, the judge held the contract void under the statute of frauds, and that therefore each delivery constituted a separate contract,.and that any defect in the quality of the article delivered at the previous times, could not.be the ground of a set-off. Unliquidated damages cannot be set-off.

The only inquiry worthy of consideration is, whether the damages arising from the defect can be brought in by way of recoupment. We think they cannot. Without inquiring whether the contract was void by the statute of frauds, and assuming that it was valid, still we think that these separate deliveries are to be considered in their nature as separate contracts. The deliveries were separate and distinct acts, and the payments for the quantities delivered were made at each delivery, and the contracts arising from such delivery wefie settled . and closed.

Damages cannot be recouped, unless they arise on the particular contract on which the action is founded.

The judgment at the special term must be affirmed.