A claim arising through the non-performance of the covenants of a lease, and which can be ascertained only by the exercise of judgment, discretion, and opinion, is one for unliquidated damages, and cannot be reached by the trustee process.
BLODGETT, J.
No difficulty attends this case. The defendant, by an instrument under seal, leased to the trustee a boarding-house and its furniture, and covenanted to do certain things which he wholly failed to do, whereby the trustee sustained damage, the amount of which has not been agreed upon by the parties, or determined by the arbitrator named in the lease, or in any other way. That such damage is a proper matter for recoupment in an action to recover the rent is well settled (Tay. L. T., s. 374, Wood Land . T., s. 465, 1 Sedg. Dam. (7th ed.) 394, note a, 2 ib. 292); and that its ascertainment requires the exercise of judgment, discretion, and opinion, and not mere calculation or computation, is a self-evident proposition. Consequently the defendant's claim against the trustee must be regarded as one for unliquidated damages, and hence it cannot be reached by the trustee process. McKean v. Turner, 45 N.H. 203, 204; Gove v. Varrell, 58 N.H. 78; Bucklin v. Powell, ante 119.
Trustee discharged.
STANLEY, J., did not sit: the others concurred.