Godkin v. Bailey

• Decision Date: 04 March 1907
• Citation: 65 A. 1032,74 N.J.L. 655
• Parties: GODKIN v. BAILEY et al.
• Court: New Jersey Supreme Court

65 A. 1032

74 N.J.L. 655

GODKIN

v. BAILEY et al.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John Godkin against William F. Bailey and others. Judgment for plaintiff. Defendants bring error. Affirmed.

John R. Hardin, for plaintiffs in error. Alfred F. Stevens, for defendant in error.

SWAYZE, J. The plaintiff sued in assumpsit for the price of goods sold and delivered. The defendants pleaded the general issue, and gave notice that they would claim an off-set for the difference in price paid by them for lumber which the plaintiff had failed to deliver. At the trial the defendants offered to prove a failure of the plaintiff to deliver lumber under a contract several years before the sale of the goods for which the suit was brought, and that by reason of this failure the defendants were obliged to go into the market where the prices for lumber had risen and purchase other lumber to take its place; that consequently the defendants were entitled to compensation for the loss sustained, and to put that loss in as an offset. The Chief Justice overruled this offer of the defendants upon the ground that the act providing for set-off limits the right to liquidated damages. It is the propriety of this ruling that is now before us for review.

Our original act relating to this subject, passed May 5, 1722 (Allinson, CO), authorizes a set-off where two persons dealing together are indebted upon bonds, bills, bargains, promises, accounts, or the like. This act antedates the English act of 2 George II, upon the same subject, which was limited to cases of mutual debts. The act of 1722 remained substantially unchanged (except that the word "contracts" was inserted, and the remedy was extended to suits where executors and administrators were parties, and a provision was made as to the off-set of a penal sum) until 1874. Paterson's Laws, p. 254; Revision 1821, p. 305; Rev. St. 1846, p. 801. In 1874 the statute was revised and the present form adopted. Revision of 1877, p. 1096; Gen. St. p. 3109. In its present form the statute provides that, if two or more persons be indebted to each other, such debts or demands, not being for unliquidated damages, may be set off against each other. Under the old act it had been held by the Supreme Court in Marshall v. Hann, 17 N. J. Law, 425, that wherever the debt was so certain that indebitatus assumpsit would lie it might be set off, and this was the test which had been adopted by the King's Bench in Howlett v. Strickland, Cowper, 56, 57. The English statute, however, relating to mutual debts, was not as broad as our statute, and the word "debts" was evidently used in the technical sense of the common law. There is nothing in Evans v. Trenton, 24 N. J. Law, 764, at page 769, which conflicts with Marshall v. Hann, for the claim of the defendant in that case was for services rendered for which he could count in indebitatus assumpsit. The act under which the Revision of 1874 was made (P. L. 1871, p. 88) provided that no changes should be made in the phraseology or distribution of the sections of any statute that had been the subject of judicial decision by which the construction as established by such decision should be impaired or affected. In view of this statutory provision, it is probable that the revisers intended no more by the change of phraseology than to simplify the language of the act, and make it more concise. The new act ought, then, to be construed as the old act had previously been construed in Marshall v. Hann. If so, the contention of the defendants cannot prevail, for the reason that indebitatus assumpsit would not lie to recover damages for nonperformance of a contract. It was essential to this count to allege an indebtedness on the part of the defendant to the plaintiff and a promise in consideration thereof. It was therefore available where the consideration had been executed. 1 Chitty, 341, ff., especially at page 347. The supplemental brief of counsel for the defendants fails to take into account the distinction between an action of assumpsit, where the plaintiff seeks to...