Hoffman v. Pontchartrain Rail Road , 9 La. 20 ( 1835 )

Bullard, J.,

delivered the opinion of the' court.

The plaintiff in this case, sues as assignee of John Grant, to recover of the defendants a balance of five hundred and two dollars and seventy-eight cents, alleged to be due him for services as superintendent for driving piles, making and finishing wharf, and for laying turn outs, under sundry contracts with the company.

The defendants in their answer, deny that they are indebted to John Grant, and aver that if their Secretary reported a balance in his favor, he had no authority from them to do so. They further allege, that John Grant never completed.any of his contracts with them, and has thereby caused them damage to the amount of one thousand dollars.

The books of the company éxhibited' on trial, show a balance due to Grant, and notice to the company of the transfer, was proved.

Where a balance is shown to be due by a company to A, who .assigns it to B, and the latter r sues for its recovery; the company cannot produce in evidence another contract between them and A, the assignor, to show his failure to perform it, and that he owes them damages on it. The defendant cannot set up a claim against the .adverse party for unliquidated da- . mages on a contract, in compensation of a liquidated demand.

On the trial of the case, the.defendants offered to read in evidence a contract between Grant and the company, for the construction of a breakwater, and witnesses to prove that the contract had not been completed, and that damages had been sustained, to the amount of one thousand dollars. The evidence was rejected, and a bill of exception .taken. We think the Court did not err in rejecting the evidence. The contract was distinct from those upon which the plaintiff’s assignor claimed a balance, and the defendants, even as against Grant, could not setup a claim for unliquidated damages, in compensation of a liquidated demand. No time was limited by the contract for the completion of the break-water, and no averment was made, much less evidence offered to show that Grant was legally in delay in relation to the fulfilment of his contract. Without such previous evidence, no damages could be recovered in a direct action against Grant.

The appellee asks this court to award him ten per cent, damages for a frivolous appeal. But we think this is not one of the cases in which we should feel authorised to inflict so severe a penalty on the appellant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.