
    Elsey v. Stamps.
    ■1. Bmns and Notes. Payable in merchandise. How value to be determined. E and S exchanged tracts of land. S to pay $1,000 -which might he or was to be discharged in whiskey. This contract being mislaid and the parties differing as to its terms, agreed that two notes should be given and received, each for twelve hundred and fifty gallons of whiskey, to be delivered March 1,1862, at Estell’s Springs or at Shel-byville. The whiskey was demanded but not delivered, as S claimed he was prevented by the war, and that it was dangerous to deliver the whiskey. Held, that S was liable for the value of the whiskey at the time it should have been delivered. That it was dangerous to deliver it, was no excuse for not performing the contract; having been notified to deliver, it would have been at the risk of E.
    2. ChanceRY Pleadings and Practice. Set-off. If the defendant relies on set-off, he must in his answer specify what his claims of set-off are. He will be allowed no other claims than those specified, unless complainant waives such strictness and agrees that all claims shall be r allowed.
    PROM MARSHALL.
    Appeal from the Chancery Court of Marshall county. W. S. Fleming, Ch.
    Lewis Bro., A. S. Colyar and A. S. Marks for Complainant.
    R. WarNer and Cooper & Frierson for defendants.
   Freeman, J.,

delivered the opinion of the court.

The bill in this case charges that complainant sold a tract of land to respondent, which he afterwards conveyed to him. That in consideration of this land,, respondent executed two notes to complainant, said notes being for twelve hundred and fifty gallons of' whiskey each, to be paid on the 1st day of March, 1862, to be delivered at Estell’s Springs, in Franklin county, or at Shelbyville, Bedford county, on that day. The other note was for like amount, to be paid in-the same way at either of said places, in March, 1863.

The prayer of this bill is an enforcement of complainant’s lien on the land, after a judgment at law had ascertained the amount due — a suit at law having before that been instituted on the notes.

An amended bill was afterwards filed, charging that defendant, about the time of filing the original bill, had sold the land for $6,000 to one Daniel, who had executed his notes for the same, and had notice the-purchase money was unpaid. The prayer of this bill was for the attachment of the notes, and appropriation of the amount to payment of complainant’s debt — and if Stamps had disposed of the notes, a lien then be enforced against the land. •

Respondent answered, making his answer a cross-bill, in which he insisted on about the following, as defense to the claim of complainant.

The notes, we omitted to state, bear date July 24,. 1861. Respondent says, that the land transaction was an exchange made the 11th of December, 1860, in which the contract was, he was to pay one thousand dollars,, as the difference between tracts, in two annual instal-ments, “to be discharged in whiskey, at forty cents-per gallon, to be delivered at the place of execution of the contract, or at Shelbyville, as .said Elsey might prefer.” He tenders the original contract, with the above terms, with his answer, by which it appears, he was to deliver good, merchantable whiskey at the places aforesaid by the first of December, or between that time and the first of March following — dated, as stated, 11th of December, 1860.

He says this contract was left in the hands of complainant Elsey, and was supposed to be lost for a time or mislaid. That being desirous of máking and receiving titles to the two tracts of land, respondent being in possession, on the 24th of July, 1861, after a long dispute between them as to the terms of the contract, complainant claiming it was for 2,500 gallons of whiskey, and respondent doubting and denying it, he refused to give the notes for the 2,500 gallons ofi whiskey, unless Elsey would agree before witnesses-' that if anything happened to prevent his making it,. Elsey would not demand more than .the one thousand, dollars.

He then claims to have been prevented from making it - by the progress of the war, and from delivering it on- account of railroads being occupied by the-armies, until the close of the war. That whiskey was only worth 40 cents a gallon at this time, and he was willing to furnish it at this price — but if he had done so, it would have been seized by the military authorities. After the war, a tax of $2 per gallon was laid on whiskey, and so he says he ought not to be now compelled to pay according to the terms of the notes.

He then pleads certain set-offs owned by him, and asks that they be allowed him.

A notice to deliver the whiskey seems to have been regularly served on respondent, but no delivery was made.

We have carefully examined the proof in this case, and find the result to be about as follows:

The original agreement or contract of sale, was given for one thousand dollars, which might be, or was to be discharged in whiskey. This agreement was lost or mislaid, or probably in the hands of’ defendant. The parties, when they come to make conveyance of the land, differ as to its terms — but at last it was agreed that the present notes sued on should be given, which was done. We think this was in accord with the wish of defendant. We see no evidence that any advantage was taken of him. He is unquestionably bound by the terms of his contract to pay the market value of the whiskey at the date of the notes," after being notified to deliver at one of the points required by the contract. What that value is, we will not attempt to settle. It is a matter for reference to the clerk. That reference, howevei*, seems to have been made, but the chancellor disregarded the report entirely, and held the complainant only entitled to recover one thousand dollars, instead of the value of the whiskey. In this he erred, and the decree must be reversed.

As to the defense urged, that it was dangerous to deliver the whiskey at EstelPs Springs, we think there is nothing in this, as we find no evidence of any contract that this was to excuse performance. This being, so, defendant having been notified by the holder •of the paper to deliver the whiskey, a delivery would have been at his risk, and if lost it would have been his loss aud not the payor’s.

The clerk seems to have allowed several set-offs, not set out in the answer, which was excepted to— but the chancellor seems to have held them good. We need but state the rule, and leave the matter for future reference. The party by his pleading has specified what his claims of set-off are. He can be allowed no other claims than those specified ■ in the answer.

The decree .will be reversed, a decree entered here in accordance with this opinion, and the case remanded for the execution of the matters of reference, and a decree on same. Costs of this and the court below will be paid by the defendant.

Upon a petition to rehear,

Freeman, J.,

said:

A petition' for rehearing ' of this ease was filed some weeks since. We proceed to dispose of the questions presented.

First, it is said the decree is wrong in disallowing only the set-off of $444.56, specially set up in the cross-bill in which this claim is made.

The allegation is, that respondent holds claims against complainant which he is advised he will be ■allowed to set off against any recovery by complainant. One of said claims is a note on said Elsey, due. February 26th, 1861, for $444.56, and he prays-to be-permitted to file and specify the others when he shall be able to get them from Franklin county.

The response to this by complainant is, he has no knowledge of any indebtedness to complainant; but if' complainant has any bona fide demands against respondent, he is willing to allow a credit for them. •

While in strictness, the complainant in his ’ cross-bill could only have the benefit of such set-offs as he. specified, yet, on reflection, we think complainant has waived this strictness on this subject, and agrees that all demands then held by the party should be credited on his claim or against his recovery. In view of' this, the decree will be modified so as to allow all legal and existing claims owned by complainant in the cross-bill (the defendant in the original bill) at the time of filing said cross-bill.

As to the other matters, they are the same as. presented in former arguments — and go to the question as to whether the notes are to be enforced by their plain terms, or whether the original agreement shall be looked to. There can be no question that the notes create the obligation of defendant — were given by him, as the amount due, and even in terms as, he then wished and approved.

With the above modification of the decree, the pé-. tition will be dismissed.  