Lindsay v. King, 23 N.C. 401, 1 Ired. 401 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 401, 1 Ired. 401

WILLIAN P. LINDSAY vs. JOHN KING.

In an action of covenant, the defendant, it appealed, covenanted to deliver to the plaintiff a certain quantity of bacon, by a certain time.

The defendant cannot, as a defence to this action, either under the plea of performance, or as a set off, or even in diminution of damages, offer in evidence a separate covenant of the plaintiff, dated the same day, to deliver to the defendant a certain quantity of corn, and, in addition, parol proof that the latter covenant was the consideration of the former, and that the latter covenant had been broken.

A set off under our statute, must be a money demand, and of a liquidated nature, and one on which an action of debt or indebitatus assumpsit would lie.

Dowd v. Faucett, 4 Dev. 92, cited and approved.

This was an action of covenant, tried at the Spring Term, 1841, of Rockingham Superior Court ot Law, beforebis Hon- or Judge Pearson. The covenant declared on, was as follows, to-wit, “ On or before the 15th of April, I promise to deliver .unto 'William P. Lindsay,, in Madison, Rockingham County, No. Carolina, twelve hundred and eighty lbs. of good merchantable bacon. John King, (Seal.)

February 21st, 1840.”

The pleas were, “ General Issue, payment and set off, accord and satisfaction, release, statute of limitation, covenants performed, no breach, mutual and dependent covenant not performed by the plaintiff,” to which the plaintiff replied generally. On the trial, the covenant declared on was admitted to be the act and deed of the defendant. The defendant proved, that the plaintiff left the county immediately after the execution of the defendant’s covenant, and offered to introduce, in support of his pleas, a covenant of the plaintiff Lindsay,in the words and figures following, to-wit, “One day after date, I promise to deliver to John King, four hundred bushels of good merchantable corn, as value of him received. Will. P. Lindsay, (Seal.)

Feb. 21st, 1840.”

And to prove by parol evidence, that the plaintiff’s covenant was executed at the same time, and was the consideration for which the covenant declared on had been given; and it was agreed by the counsel on both sides, that should the Court be of opinion that defendant’s covenant could be received as evidence, and the parol evidence was competent in bar of the plaintiff’s action, or in support of the plea of set off, the plaintiff should submit to a nonsuit; or if it could be received in mitigation of damages, judgment should be rendered for a penny and costs; otherwise, a verdict for the value of the bacon. His Honor being of opinion for the plaintiff, there was a verdict for the plaintiff for the value of the bacon. A motion for a new trial was made by the defendant, and overruled, and judgment rendered for the plaintiff, from which, the defendant appealed.

J. T. Morehead for the plaintiff.

No counsel for the defendant.

Gaston, J.

This action was brought to recover damages for the breach of a covenant, executed by the defendant, on the 21st of February, 1840, whereby he covenanted to deliver to the plaintiff, in the town of Madison and county of Rockingham, 1280 lbs. of good merchantable bacon, on or before the 15th day of* April, next ensuing. Among other pleas, not now material to be considered, the defendant pleaded that he had performed his covenant, that the said covenant was dependent upon a certain covenant, which had been executed by the plaintiff to deliver to the defendant a certain, quantity of corn, and which had not been performed; and also, a set off of the damages sustained by the defendant, by reason of plaintiff’s breach of said last mentioned covenant. Upon the trial, the defendant offered in evidence, a covenant executed by the plaintiff, on the said 21st of February, 1840, whereby he bound himself to deliver to the defendant, one day after date thereof, 400 bushels of merchantable corn, for value received, and further offered to prove by parol, that the latter covenant was executed at the same time with the former, and constituted the consideration for which the former was given. This evidence'was rejected, and the plaintiff had a verdict and judgment, and the defendant appealed.

We see no error in the rejection of the evidence offered. It is manifest, that it neither proved nor tended to prove the defendant’s plea of performance. The instrument, upon which the defendant was sued, purports to be a single, definite, unconditional engagement under his seal, to deliver a quantity of bacon at an appointed place, upon'an appointed day. It has no'-reference, direct or indirect, to any other contract or engagement between the parties. Its legal construction, and consequently, its legal operation, must therefore depend upon its terms, and cannot be varied or modified by any testimony, dehors the instrument itself.

The plea of set off was radically bad, and it would have been idle to admit testimony in support of it. The statute allows “mutual debts’’ to be set off, and the construction of the statute is settled, that no demand comes within the term “ debt,” as therein used, except it be a money demand, and of a liquidated nature, and one on which an action of debt or indebitatus assumpsit would lie.

Nor was the evidence receivable in diminution of damages. It has been said by us on a former occasion, and we believe correctly, that “damages may be reduced by such things as have been done in execution, or towards the performance ot the covenant, but not by any matter, distinct from, or unauthorized by it.” Dowd v. Faucett, 4 Dev. 92.

Per Curiam, Judgment for plaintiff affirmed.