Cragin Manufacturing Co. v. Geuder & Paeschke Manufacturing Co. ( 1899 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

We are unable to see how the claim of set-off presented by defendant in error can be maintained against plaintiff in error, the Cragin Manufacturing Company, when the transaction upon which the claim is based was had with W. P. Cragin, in his individual capacity. It is not controverted that the assignee of plaintiff in error sold the machinery, dies, etc., in question to W. P. Cragin, nor that defendant in error purchased them from W. P. Cragin. It is undisputed that the County Court would not permit the assignee of plaintiff in error to sell these assets to defendant in error upon the terms proposed. It does not matter that W. P. Oragin would not have purchased them had not the County Court thus refused to let them be sold to defendant in error by the assignee. As a matter of fact the assignee did not, and could not, make this sale by reason of the control of the County Court, and hence, it seems clear, there can be no liability of assignee or plaintiff in error for breach of a contract of sale which was not, and could not be, made by either. There is no need to cite authorities to the effect that a claim of set-off must be mutual. This was not a claim mutual as between plaintiff and defendant.

Other questions raised by counsel relating to the nature of the damages claimed by way of set-off, whether liquidated or unliquidated, and questions relating; to the sufficiency of proof of value of articles of machinery, dies, patent right, etc., parts of the goods sold by W. P. Oragin to defendant in error, become unimportant here by reason of the conclusion reached by the court.

The judgment is reversed and the cause remanded.