Westminster Metal & Foundry Co. v. Coffman

• Court: Maryland Supreme Court
• Writing for the Court: PATTISON, J.
• Citation: Westminster Metal & Foundry Co. v. Coffman, 91 A. 716, 123 Md. 619 (Md. 1914)
• Decision Date: 25 June 1914
• Docket Number: No. 32.,32.
• Parties: WESTMINSTER METAL & FOUNDRY CO. v. COFFMAN et al.

91 A. 716

123 Md. 619

WESTMINSTER METAL & FOUNDRY CO.

v. COFFMAN et al.

No. 32.

Court of Appeals of Maryland.

June 25, 1914.

Appeal from Circuit Court, Carroll County; Wm. H. Forsythe, Jr., Judge.

Action by Andrew K. Coffinan and another, against the Westminster Metal & Foundry Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ.

Ivan L. Hoff and Edward O. Weant, both of Westminster, for appellant. F. Neal Parke, of Westminster (Lane & Keedy, of Hagerstown, and Bond & Parke, of Westminster, on the brief), for appellees.

PATTISON, J. The suit in this case was brought against the appellant, the Westminster Metal & Foundry Company, by the appellees, Andrew K. Coffman and Joe Brenner, trading as the Reliable Junk Company, use of the Maryland Surety & Trust Company.

The declaration contains the common counts, for goods bargained and sold, for work done and materials provided, for money lent, for money paid by the plaintiff to the defendant at his request, for money received by the defendant for the use of the plaintiff, and for money found to be due from the defendant to the plaintiff on accounts stated between them, and one special count, for goods, consisting of brass, lead, etc., sold and delivered by the plaintiff to the defendant at the times and for the prices therein named, under a contract between them. The defendant pleaded thereto "never indebted" and set-off. The plea of set-off contains the common counts for goods bargained and sold, for goods sold and delivered, for work done and materials provided, for money found to be due by the plaintiff to defendant on accounts stated between them, and two special counts, numbered therein 5 and 6. The fifth count alleges:

"And for that the plaintiffs on the 17th day of July, 1912, agreed to sell to the defendant and the defendant agreed to buy of the plaintiffs 30,000 pounds of red brass and 10,000 pounds heavy yellow brass, to be delivered by the plaintiffs at the freight depot in the city of Westminster, in Carroll county, Md., within 60 days from date of agreement, at and for the price of 12 1/2 cents per pound for the red brass and 10 cents per pound for the heavy yellow brass, and the defendant says that it was at all times ready and willing to accept and pay for said red brass and heavy yellow brass, and that it made frequent demands upon the plaintiff for the delivery of the same, but that the plaintiff wholly failed and refused to make said delivery, or to" perform any part of their contract. And the defendant further says that because of the said failure and refusal on the part of the said plaintiff, it was compelled to go into the open market and purchase, at a price largely in excess of the agreed price aforesaid, to wit, at the rate of 14 1/2 cents per pound of red brass, similar to that which the said plaintiff so as aforesaid sold, but failed and refused to deliver, and at the rate of 10 1/2 cents per pound of heavy yellow brass similar to that which the said plaintiff so as aforesaid sold, but failed and refused to deliver."

The sixth count alleges:

"And for that the plaintiff on the 10th day of December, 1912, agreed to sell to the defendant and the defendant agreed to buy of the plaintiff 50 tons of stove plate and 50 tons of heavy cast iron, to be delivered by the plaintiff at the property of the Westminster Metal & Foundry Company on John street, in the city of Westminster, in Carroll county, Md., during the months of December, 1912, and January, 1913, at the price of $10 per ton for the stove plate and $12 per ton for the heavy cast iron, and the defendant says that it was at all times ready and willing to accept and pay for all said stove plate and heavy cast iron, and that it made frequent demands upon the plaintiff for the delivery of the same, but that the plaintiff wholly failed and refused to make said delivery or to perform any part of their contract. And the defendant further says that because of the said failure and refusal on the part of the plaintiff it was compelled to go into the open market and purchase at a price largely in excess of the agreed price aforesaid, to wit, at the rate of $14.75 per ton for stove plate similar to that which said plaintiff so as aforesaid sold, and at the rate of $14.75 per ton for the heavy cast iron similar to that which the said plaintiff so as aforesaid sold, but failed and refused to deliver."

The plaintiff demurred to said fifth and sixth counts of the defendant's plea of set-off, and the demurrer was sustained. The case was submitted to the court for trial upon issues joined on the remaining pleas, and the court, sitting as a jury, found in favor of the plaintiff, and judgment in its favor was entered upon such finding.

The main question involved in this appeal is whether or not the appellant's set-off is for liquidated or unliquidated damages. It is well established by the law of this state that if such damages are unliquidated, then they cannot be so pleaded. The defense of set-off is unknown to the common law, and owes its origin altogether to statute.

Section 12 of article 75 of the Code of Public General Laws of 1912 provides: '

"In any suit brought on any judgment or bond or other writing sealed by the party, if the defendant shall have any demand or claim against the plaintiff, upon judgment, bond or other instrument under seal, or upon bill of exchange, check, * * * he shall be at liberty to file such demand, or claim in bar, or plead the same in discount of the plaintiff's claim, and judgment for the excess of the one claim over the other, as each is proved, with costs of suit, shall be given for the plaintiff or the defendant, according as such excess is found in favor of the one or the other of these parties, if such excess be sufficient to support a judgment in the court where the cause is tried according to its established jurisdiction," etc.

Section 13 of the same article applies to suits upon simple contracts.

The object of allowing this defense is to prevent circuity of action and to enable the parties to adjust in one suit claims which at common law could not be settled without two or more actions. And it may be stated in general terms that to authorize a set-off, the debts must be mutual, must be between the parties in their own rights, must be the same kind or quality, and be certain and clearly ascertained or liquidated. 1 Poe's Pleading, § 613; Smith v. Washington Gaslight Co., 31 Md. 12, 100 Am. Dec. 49; Hearn v. Cullin, 54 Md. 533; Steuart v. Chappell, 98 Md. 527, 57 Atl. 17.

We must therefore, in deciding this appeal, determine whether the claim of set-off in this case is for liquidated or unliquidated damages.

This court has, in a number of cases, laid down the rule to be applied in ascertaining whether the claim made is for liquidated or unliquidated damages. In most instances the question has arisen in attachment proceedings. Nevertheless, we think the rule or test applied in those cases may be properly applied in this case, inasmuch as the question there decided was whether the claim made was one for liquidated or unliquidated damages, and that is the sole question here.

The rule is stated in the case of Dirickson v. Showell, 79 Md. 49, 28 Atl. 896, where the attachment was quashed upon the ground that the claim was for unliquidated damages, not that an attachment could not have been issued for the recovery of such damages, but because no bond had been given by the plaintiff, as required by the statute in cases of unliquidated damages. The court, in discussing the contract in that case, said:

"Is this a claim for unliquidated damages, where the measure or standard of the damages is not fixed by the contract itself? If the contract itself fixes the amount due, or affords by its terms a certain measure for ascertaining that amount, an attachment will lie if the necessary jurisdictional facts appear; and the test is whether the contract furnishes a standard by which the amount of the indebtedness or damages may be determined with sufficient certainty...