Souders v. Smith

Leaming, V. C.

Complainant’s motion against defendant’s counter-claim must prevail.

It is obvious that the counter-claim which is essentially a cross-bill could not have been entertained had it been filed as an independent bill, since it is purely a suit for the recovery of unliquidated damages.

Nor does the circumstance that complainant herein by his bill seeks specific performance of the contract enlarge the jurisdiction of this court to entertain on behalf of defendant a suit for unliquidated damages. Should specific performance be denied, defendant’s remedy for damages is to be found in the law courts. The several eases in which damages have been assessed for defendants will be found to have been cases in which relief has been afforded a complainant on terms, and cases in which consent has been given. A review of several cases of that nature will be found in Stout v. Portland Cement. Co. (Court of Chancery), 74 Atl. Rep. 966.

The counter-claim will be dismissed. Defendant may have ten days to file an amended pleading, should she so elect.