Set-off. Damages, Liquidated. Under R.L.c. 174, § 1, only liquidated damages are the subject of set-off.
In an action for the price of goods sold and delivered, the defendant cannot set off a claim for damages caused by an alleged breach of the contract of sale by the plaintiff in failing to deliver the goods in accordance with its terms, such damages being unliquidated, and such damages are not made certain or capable of computation by stating the exact amount claimed and by adding a list of the prices paid by the defendant for goods to take the place of those which the plaintiff failed to deliver.
MORTON, J.
The question in this case is whether the defendant has a right to recover upon his declaration in set-off. The cause of action set out in the declaration is the alleged breach by the plaintiff of two contracts entered into between the plaintiff and defendant for the sale and delivery by the plaintiff to the defendant of the goods therein described. The defendant seeks to recover of the plaintiff by the declaration in set-off damages for the breach of the contracts thus alleged to have been made. But the damages so sought to be recovered are unliquidated, and are not, therefore, the subject of a set-off. R.L.c. 174, § 1. Cardell v. Bridge, 9 Allen, 355. Montague v. Boston Fairhaven Iron Works, 97 Mass. 502. Barry v. Cavanagh, 127 Mass. 394. They are not rendered certain and capable of calculation by the allegations in the amended declaration in regard to the prices which the defendant had to pay to supply itself with the goods, or by the statement of the exact amount of the damages claimed. Corey v. Janes, 15 Gray, 543. It would still remain for the jury taking all the facts and circumstances into account to say what damages, if any, the defendant was entitled to, and it could not be known what the damages were until they had been assessed by the court or the jury.
Judgment for the plaintiff and order sustaining the plaintiff's demurrer affirmed.