Opinion
(June Term, 1841.)
1. In an action of covenant, the defendant, it appeared, covenanted to deliver to the plaintiff a certain quantity of bacon by a certain time.
2. The defendant cannot as a defense 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.
3. 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.
COVENANT, tried at Spring Term, 1841, of ROCKINGHAM, before Pearson, J. The covenant declared on was as follows, towit:
J. T. Morehead for plaintiff.
No counsel for defendant.
On or before 15 April, I promise to deliver unto William P. Lindsay, in Madison, Rockingham County, North Carolina, 1,280 pounds of good merchantable bacon. JOHN KING. [SEAL]
21 February, 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, towit:
One day after date, I promise to deliver to John King 400 bushels of good merchantable corn, as value of him received.
21 February, 1840. WILL P. LINDSAY. [SEAL]
(402) 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.
This action was brought to recover damages for the breach of a covenant executed by the defendant on 21 February, 1840, whereby he covenanted to deliver to the plaintiff, in the town of Madison and county of Rockingham, 1,280 pounds of good merchantable bacon, on or before 15 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 said 21 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 (403) 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 of the covenant, but not by any matter distinct from or unauthorized by it." Dowd v. Faucett, 15 N.C. 92.
PER CURIAM. Affirmed.
Cited: Battle v. Thompson, 65 N.C. 407; Terrell v. Walker, 66 N.C. 251; Raisin v. Thomas, 88 N.C. 151; Cheese Co. v. Pipkin, 155 N.C. 397.
(404)