
    Barrow v. Mallory Brothers & Company.
    1. In an action of trover, unless there be some special equitable ground (such as non-residence or insolvency of the plaintiff) for allowing the defence, the damages sustained by the defendant from a breach of contract by the plaintiff are not the subject-matter of set off, and cannot be so pleaded.
    2. Where, upon evidence being offered in support of a plea, the court is in doubt as to its admissibility, the evidence may be admitted subject to reconsideration at a later stage of the trial; and if the court be then convinced that it ought not to be admitted because the plea is defective in substance, a demurrer to the plea for insufficiency in substance may be entertained and the evidence withdrawn from the jury.
    March 26, 1892.
    Argued at the last term.
    Trover. Set-off. Practice. Evidence. Before Judge Fort. Sumter superior court. May term, 1891.
    This was a suit for a saw-mill and saw, and its profits or hire. A plea was filed, and evidence introduced on both sides. Plaintiffs objected to defendant’s testimony, on the ground that the damages were too remote and speculative and otherwise illegal. The court permitted the testimony to he heard, hut gave plaintiffs’ counsel an opportunity to produce authorities. After the evidence had been so heard and the parties closed and so announced, a demurrer was urged to the plea, which was sustained and the evidence ruled out. The defendant objected to the making of the demurrer, at the time, as coming too late. Plaintiffs had elected to take a money verdict. Defendant excepted because the court erred in allowing plaintiffs to demur after evidence had been introduced under the plea by both sides, and after the casé had been closed; and also erred in sustaining the demurrer and striking the plea. The plea was : Defendant purchased of plaintiffs an engine, boiler, sawmill and other machinery, and plaintiffs expressly warranted the engine and machinery to be first class, and when the machinery was delivered and after giving the same a fair trial it was found to be worthless ; ■ defendant notified plaintiffs of said defects, when plaintiffs then agreed and promised to furnish another engine and other machinery, and defendant relying on said promise endeavored to do the best he could on the promise to send said engine and machinery immediately; and the said plaintiff's have totally failed to comply with said contract. Defendant was engaged in the saw-mill business, and as such had made contracts with various persons to furnish lumber for the purpose of building; by reason of said defect in said machinery he had to give up said contracts ; and by reason of said failure to comply with said contract by plaintiffs, he sustained a loss of $500. By reason of said saw-mill business he had a large number of hands, .and to keep up said business he retained said hands and stock, and lost by reason of the failure of plaintiff's to comply with their contract; he sustained a loss for hands and feeding stock, etc., the sum of $432, and he asks judgment against plaintiff’ for said amount. • The demurrer was, that the plea was' insufficient and too general, and the damages too remote and speculative; and that defendant could not have such a plea of recoupment for damages in an action of trover.
   Judgment affirmed.

Hudson & Blalock, for plaintiff in error.

J. Dodson & Son, contra.  