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proportion of the consideration belonging to the ten acres covered by the adverse title, and the expense of obtaining the grant of the fifty-six acres. (*) If the land was sold for a certain price per acre, it has been held that the value of the deficient land is to be estimated at the contract price.() If the title, represented good, entirely failed, the measure of damages is the value of the land. (©) The measure of damages in an action for fraudulently representing real estate as unincumbered, which was in fact subject to a mortgage, is the amount of the mortgage and interest, if that is less than the value of the land; (4) and where the mortgage is foreclosed, the costs of the foreclosure. (*) Where the vendor of a mill-site misrepresented its description, but the vendee elected to keep the premises actually conveyed, the measure of damages was held to be what it would cost to obtain by expeditious legal proceedings the land falsely represented to be also covered by the deed. (')

Where the defendant misrepresented the boundaries of the land sold, but upon being sued tendered a deed of the strip which had not been included in the original conveyance, it was said by the Supreme Court of New Hampshire that if this were a tender that the defendant as a reasonable man should accept; for instance, if the strip were a narrow one, which would be valueless except as part of the defendant's land, this tender should be considered in mitigation. () This doctrine seems question(*) Parker v. Walker, 12 Rich. L. 138.

() Hallam v. Todhunter, 24 Ia. 166; Anderson v. Snyder, 21 W. Va. 632. (c) Stewart v. Jack, 78 Ia. 154; Donlon v. Evans, 40 Minn. 501. But in Texas the measure of damages is the purchase-money, with interest. Haddock v. Taylor, 74 Tex. 216.

(4) Cross v. Devine, 46 Hun 421.

(*) Haight v. Hayt, 19 N. Y. 464.

() Reynolds v. Cox, 11 Ind. 262.

(*) Towle v. Lawrence, 59 N. H. 501.

able. It is opposed to the general principle excluding from consideration offers of reparation not accepted by the plaintiff.(") The only case cited in support of the doctrine was a mere dictum of the Supreme Court of the United States, (') approving the rule that in actions for the conversion of a chattel, the chattel might be brought into court and surrendered.(©) This is not to be extended to the case of land without more authority.

1029. The rule in Smith v. Bolles.-The rule laid down in the case of Smith v. Bolles, (d) and already discussed, would in terms apply only in the case of fraud in the sale of a chattel. But it has been held in the Federal courts that the reason of the rule applies also in the case of the sale of land, and, therefore, that the measure of damages in the case of fraud in the sale of land is not the difference between the value of the land as it was and as it was represented, but the difference between the value of the land and the price paid. () Whether this rule will be generally followed cannot yet be determined.

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(132 U. S. 125. See § 778.

() Atwater v. Whiteman, 41 Fed. Rep. 427; Glaspell v. Northern Pac. R.R. Co. 43 Fed. Rep. 900.

CHAPTER XXXIV.

SET-OFF AND RECOUPMENT OF DAMAGES.

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1035. Modern sense of the term. 1036. Early English rule. 1037. Conflict in English cases. 1038. Modern English rule. 1039. The rule in the United States. 1040. Principle on which the doctrine is founded.

1041. Claim recouped must be recoverable in action. 1042. Recoupment confined to subject-matter of action. 1043. Damages subsequent to commencement of suit. 1044. Form of action. 1045. Notice.

1046. Recoupment must be pleaded. 1047. Allowed though both demands are unliquidated.

1048. Election between recoupment and cross-action. 1049. No recovery by the defendant. 1050. Recoupment in action on a note or bill.

1051. Recoupment in action for an instalment.

1052. Fraud in sale of land.

1053. Breach of real covenant. 1054. Profits of land occupied. 1055. Trespass by grantor. 1056. Fraud in effecting a lease of land.

1057. Breach of covenant in a lease, 1058. Tort of the landlord. 1059. Sale of chattels-Non-delivery of part.

1060. Defect in goods delivered. 1061. Breach of a term of sale. 1062. Sale of good-will of business. 1063. Contracts for the hire of chattels.

1064. Contracts of service-Departure without notice. 1065. Destruction of master's property.

1066. Misbehavior in performance of duty.

1067. Contracts of construction. 1068. Contracts of carriage. 1069. Pledges - Misapplication of the term recoupment.

1070. Miscellaneous contracts. 1071. Exchange of property. 1072. Recoupment prevents recovery for same cause.

1073. Failure to recoup does not bar action for same cause.

1074. Payment not pleaded. 1075. Recoupment after verdict.

1030. Reduction of recovery by amount of adverse claim. Having now examined the rules which govern the measure of compensation allowed in the various

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classes of actions by which relief is obtained, * we have to consider the principles upon which an acknowledged right for redress or remuneration is reduced in its amount by the establishment of an adverse or cross-claim, which is taken into consideration in the same suit, to use technical language, by way of set-off, or recoupment or counterclaim. **

§ 1031. Set-off. The doctrine of set-off is so fully treated in the various treatises devoted to that particular subject, that it is unnecessary to do more than briefly state some of the general principles here. *At common law no right of set-off existed, it being the object of the system to confine every suit to the particular subject of litigation which gave rise to it. The courts of equity, however, in this as in many other cases, lent a ready ear to the appeals made to them from the narrow remedies. and harsh doctrines of the common law; and to prevent circuity of action and multiplicity of litigation, introduced the principle of set-off, a principle well known to the civil law by the name of compensation.

This doctrine, which is nothing more than a system of settling cross-demands in one suit, finally appeared so equitable that legislation was resorted to to get rid of the necessity of applying to a court of equity; and the principle of set-off is now fully established in both American and English legislation. It is unnecessary here to enter upon an examination of the various statutes of set-off; it is sufficient to say that, as a general rule, where adverse or cross-claims of a pecuniary character exist between the same parties, and the demands are liquidated, the principle is applied.

But the object of the statutes of set-off is to settle mutual accounts and debts. Wrongs or torts done, and unliquidated damages claimed, have never been per

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mitted to be set off.'() And unliquidated damages have been defined as follows: "Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case; which cannot be ascertained by computation or calculation, as, for instance, damages for not using a farm in a workmanlike manner, for not building a house in a good and sufficient manner, on warranty in the sale of a horse, for not skilfully amputating a limb, and other cases of like character." In Illinois, however, unliquidated damages arising out of contract, express or implied, may be set off in actions. ex contractu, unless they are totally disconnected with the plaintiff's cause of action.*** In England, unliquidated damages cannot be set off either at law or in equity.(*) Under the Pennsylvania defalcation act, damages arising out of a separate transaction, although unliquidated, can

1 Butts v. Collins, 13 Wend. 139, 156; McDonald v. Neilson, 2 Cowen 139; Heck v. Shener, 4 Serg. & R. 249; 10 S. & R. 14; U. S. v. Robeson 9 Pet. 319, 325; U. S. v. Buchanan, 8 How. 83;

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Howlet v. Strickland, Cowp. 56; Freeman v. Hyett, 1 W. Black. 394.

Butts v. Collins, 13 Wend. 139, 156. 3 Sargeant v. Kellogg, 10 Ill. 273; Kaskaskia Bridge Co. v. Shannon, 6 Ill. 15.

(*) Allen v. U. S., 17 Wall. 207; Hunt v. Middlesworth, 44 Mich. 448; Johnson v. Jones, 16 Mo. 494; Mahan v. Ross, 18 Mo. 121; Pratt v. Menkens, 18 Mo. 158; Brake v. Corning, 19 Mo. 125; Bell v. Ward, 10 R. I. 503. In Bell v. Ward, 10 R. I. 503, the defendant attempted to set off a claim on a quantum meruit for services rendered as an attorney. The court said: "To be the subject of set-off at law, the statute requires that the demand proposed to be set off should be liquidated, the amount of the demand ascertained and settled, or ascertainable by calculation, and without the necessity of other proof than of the liability." But see Sledge v. Swift, 53 Ala. 110, where a similar claim was allowed to be set off, the court defining unliquidated damages as those which rest in opinion merely, and saying that this claim was a proper set-off, because it was one recoverable in indebitatus assumpsit. As to the Alabama statute, see Eads v. Murphy, 52 Ala. 520.

() Best v. Hill, L. R. 8 C. P. 10; Rawson v. Samuel, 1 Cr. & P. 161.

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