Hartshorn v. Kinsman

• Decision Date: 31 May 1885
• Citation: 16 Bradw. 555,16 Ill.App. 555
• Parties: ERASMUS D. HARTSHORN ET AL.v.THOMAS B. KINSMAN.
• Court: United States Appellate Court of Illinois

16 Ill.App. 555

16 Bradw. 555

ERASMUS D. HARTSHORN ET AL.

v.THOMAS B. KINSMAN.

Appellate Court of Illinois, Second District.

May Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Iroquois county; the Hon. FRANKLIN BLADES, Judge, presiding. Opinion filed August 7, 1885.

Messrs. KAY & EUANS, for appellants; as to set-off, cited Hawks v. Lands, 3 Gilm. 232; Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckells, 3 Scam. 298; McEwen v. Kerfoot, 37 Ill. 530; Springdale, C. A. v. Smith, 32 Ill. 253; King v. Bradley, 44 Ill. 342; Derby v. Gage, 38 Ill. 30; Freibroth v. Mann, 70 Ill. 526; Zuckerman v. Solomon, 73 Ill. 130.

Messrs. DOYLE, MORRIS & PIERSON, for appellee; as to set-off, cited Sanger v. Fincher, 27 Ill. 346; Babcock v. Trice, 18 Ill. 422; Waterman v. Clark, 76 Ill. 430; Hawks v. Lands, 3 Gil. 232; Sargeant v. Kellogg et al., 5 Gil. 280; Bush v. Kindred, 20 Ill. 95; Evans v. Hughey, 76 Ill. 115.WELCH, J.

On 8th day of January, 1884, appellants sued appellee before a justice of the peace, upon a promissory note and account. The note was given in part for an account and for the interest that had accrued upon a note, and which was all that remained unpaid upon a note executed by appellee to appellants for the purchase of a self-binding harvester. While this suit was pending, appellee sued the appellants for a breach of the warranty made by appellants on the purchase of the self-binding harvester. Summons was served on the appellee in the suit brought by appellants against him, and he failed to appear, but made default, and judgment was rendered in that suit in favor of appellants for the sum of fifty- one dollars and ninety-three cents. A credit of seventeen dollars and seven cents was allowed by appellants on their claim against appellee for damages on breach of warranty. Appellee was not present when it was done. It is insisted by appellants that under section 49 of chapter 74, Revised Statutes, it was the duty of the appellee to bring forward in this suit against him his claim for damages, arising out of any breach of the warranty of the harvester, and that he having failed to do so, is debarred from suing thereon. If this position of appellants is tenable, it is decisive of this case. We have given to the authorities referred to in the briefs of appellants and appellee a careful consideration, and we find that there is an apparent conflict in the decisions of our Supreme Court upon the subject. We are, however, of the opinion that this conflict is more apparent than real, and that it arises from some unguarded expressions where the distinction between set-off and recoupment seems to have been ignored and the terms used synonymously. The Supreme Court say, in Hawks v. Lands, 3 Gilman, 227, that “the cases of Edwards v. Todd, 1 Scammon, 462 and Nichols v. Ruckells, 3 Scammon, 298, have only gone the length of deciding that damages arising out of the contract on which the suit is brought are properly the subject-matter of set-off in such suit.” And it is held in the same case that unliquidated damages arising out of covenants, contracts or torts, totally disconnected with the subject-matter of the plaintiff's claim, are not such “claims or demands” as constitute the subject-matter of set-off under our act of assembly. “In case of Sargeant v. Kellogg et al., 5 Gil. 273, it was held, that under the statute of this State unliquidated damages arising out of contracts, express or implied, may be set off in actions ex contractu. This can not be done where the claim for unliquidated damages is totally disconnected with the plaintiff's cause of action. The same question that is made in this case was before the Supreme Court in Bush v. Kindred, 20 Ill. 93. The declaration in that case contained special counts for damages claimed as growing out of a breach of contract, and the common counts in the usual form, to which the defendant filed several pleas. The fifth plea was that the defendant, before this suit was instituted, had sued the plaintiff before a justice of the peace and recovered a judgment against him, and that the cause of action in this case then existed, and could have been set off in that trial, and failing to do so, that that judgment was a bar to this action.

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