Andre v. Morrow ( 1887 )

Campbell, J.,

delivered the opinion of the Court.

The demurrer to the last plea of the defendant should have been overruled. The contract averred by it was not an independent one, so disconnected with the note sued on as to debar tbe defendant from recouping damages. The breach and damages occurred subsequent to the making of the contract, of course; but that is no reason for denial of the right of recoupment.

It is impossible to affirm that the defendant did not sustain damages capable of ascertainment and of a character recognized by law resulting from the breach of the contract alleged by the plea. It is not necessary to consider of speculative profits. There may be a legitimate basis for estimating damages. If there was such a contract as averred and its breach, and Andre, in consequence, sold the wagons at cost, the commissions for ■selling as he had before done, may furnish a criterion for estimating damages. The substantial sufficiency of the plea is the only question raised by the demurrer or considered by us.

Reversed, demurrer to plea overruled, and cause remanded for further proceedings.