
    *Christian and Wife and Another v. Miller Assignee &c.
    October, 1831.
    [23 Am. Dec. 251.]
    (Absent Green, J.)
    Appeal from Circuit Court — Right to Inspect Hinutes to Correct Mistake in Entry of Judgment. — Upon an appeal from a judgment of a circuit court, this court cannot inspect the minutes of the proceedings taken by the clerk, for the purpose of correcting a mistake in the entry of the judgment on the order book; aliter, in the case of a judgment of a county court.
    Joint Bonds — Action on — Set-Off.—A. and B. execute a joint bond to O. part of the consideration of which is the price of a parcel of corn sold by C. to A. deliverable at a day subsequent to the date of the bond; the corn is not delivered according to contract; in debt on the bond by 0. against A. and B. the defendants cannot set-off tlie value or price of the corn.
    Contracts to Deliver Goods — Failure to Delivery-Rights of Purchaser. -Where one purchases goods deliverable at a future day, and presently binds nitnself by deed to pay the purchase money, or pays it in cash; the purchaser, in case the goods be not delivered, cannot disaffirm the contract, and claim the stipulated price paid, or contracted to be paid, but can only recover damages against the vendor for breach of his contract.
    This was an action of debt, brought in the circuit court of Amherst, by Boyd Miller assignee of Thomas Coleman against Christian and wife and Carter, upon a bond for 489 dollars, executed by Mrs. Christian while sole, and Carter. The defendants’ plea ,vas payment, on which an issue was made up. There was a trial, and a verdict and judgment for the plaintiff. But, in the record sent to Lhis court, it appeared that there were only eleven men impaneled and sworn upon the jury.
    At the trial the defendants relied upon a set-off (notice thereof having been given, according to the statute, 1 Rev. Code, ch. 128, $ 87, p. 510), to establish which they examined witnesses, who testified, that Mrs. Christian (the principal obligor in the bond) had, a short time before the date thereof, purchased a parcel of corn of Coleman the "’obligee, to be by him delivered to her at a future day, which was subsequent to the date of the bond; that the corn was never delivered to her by Coleman, according to the contract; and that the price which she contracted to pay for this corn, was a part of the sum of which the bond was given. Whereupon, on the motion of the plaintiff’s counsel, the court instructed the jury, that if it should find from the evidence, that the price of the corn was part of the consideration of the bond, it was not to be allowed as a set-off in this action. To this opinion the defendants filed a bill of exceptions, and appealed from the judgment to this court.
    The cause was argued here, by Johnson for Ihe appellants and by Stanard for the appellee.
    Johnson said, the proceedings must certainly be reversed, for the defect in the number of the jury. Stanard suggested, that the record might be corrected in this particular, by the minutes taken by the clerk, by which it would probably be found that the number of the jury was complete. Johnson replied, that the minutes could not be referred to; that there was a distinction between the proceedings of a county court and those of a circuit court; in the former, the minutes were drawn up and signed by the presiding justice, and were the original record of the judgments, but in the circuit court, the minutes were not part of the record, but only memoranda taken by the clerk, to enable him to make the entries in the order book, and these entries were signed bj' the judge, and were the original record. Cogbiil v. Cogbill, 2 Hen. & Munf. 477 , 8, and Vaughan & al.- v. Freeland & al., Ibid, in notis.
    But, both the counsel being desirous that the court should decide the point presented by the bill of exceptions, so as to put an end to the controversy, that point was examined.
    Johnson said, the opinion of the circuit court upon it, was apparently founded on (what he thought) a mistaken application of the principle, that the consideration of a sealed contract could not be inquired into, in an action at law upon *the instrument. That principle was only just and applicable, where an attempt was made to go into the consideration, for the purpose of defeating the obligation of the instrument; but it was not applicable when the inquiry into the consideration, was intended to ascertain some collateral point in issue, perfectly consistent with the obligation. Here the defence was set-off; which admitted the obligation of the bond, and the debt thereby created, but alleged satisfaction of it.
    Stanard said, 1. that this was an attempt to evade the principle, that the consideration of a bond could not be inquired into, in an action of debt upon it; it was an attempt to set up a failure of the consideration as a defence to the action; but failure of consideration, even want of consideration, was no defence. 2. That it was an attempt to set off a debt due to Mrs. Christian severally, against a demand against her and Carter jointly; they were not mutual debts. And 3. that it was an attempt to set off unliquidated damages against a certain demand; damages for the failure of Coleman to deliver corn at a future appointed day, and to be measured, of course, by the value of the corn at the day appointed for the delivery.
    Johnson replied to the objection against the proposed set-off because the debts were not mutual, That, if Mrs. Christian had brought a suit for the debt due to her severally, this debt due from her and Carter jointly, could not have been set-off against her demand, since that would have been, in effect, to make her pay the whole debt for which she and another were jointly bound : but here, she was sued on the bond of herself and another, and if she took upon herself to pay the whole debt, by the' application of her own money or funds to the satisfaction of it, there could be no injustice to the plaintiff, orto her co-obligor. And as to the objection, that this was an attempt to set off unliquidated damages, he said, the contract for the delivery of the corn, for the price of which Mrs. Christian had given the bond, having been broken by Coleman, she had *a right, if she thought proper, to disaffirm that contract intirely, and to recover back the price; which was a sum certain.
    
      
       He sat in none of the cases reported in the sequel of this volume, except the cases of Burwell’s ex’ors v. Anderson’s adm’r &c., and Doswell v. Buchanan’s ex’ors, post. His absence was owing to bad health.
    
    
      
       Bonds — Action at Law — Set-Off.—In Fisher v. Bur-dett, 21 W. Va. 629, it is said: “Before the adoption of said act of 1831, the courts of Virginia held, that the defendant could not vacate a bond at law because he was imposed upon in a settlement of accounts which preceded its execution, or because the bond was founded on a false or fraudulent statement of facts — Taylor v. King. 6 Munf. 358: or because the bond had been obtained by fraudulent misrepresentations made by the plaintiff — wyche v. Macklin, 2 Band. 426; or when the action was on a contract either by deed or by parol the defendant could not at law show, that the consideration had failed in part — Tomlinson v. Mason, 6 Band. 169; Webster v. Couch, Id. 519; 1 Rob. Pr. (old) 227-8; Christian v. Miller, 3 Leiah 78.” The principal case is also cited in B. & O. B. R. Co. v. Jameson, 13 W. Va. 844; note in 1 Va. Law Beg. 542. See monographic note on “Bonds", appended to Ward v. Churn, 18 Gratt. 801.
      Set-Off. — In Kinzie v. Riely (Va.), 42 S. E. Bep. 873, It is said: “Section 3298 of the Code provides that, although the plaintiff’s claim be jointly against several persons, a debt due to only a part of the defendants may be set-off against the plaintiff’s demand, if it appear that the persons against whom such claim is made stand in the relation of principal and surety and the persons entitled to the set-off is principal. The provisions of that section apply only where the set-off is a debt or liquidated demand. 4 Minor Inst. (3d Ed.) 787 ; 5 Rob. Prac. 964; Webster v. Couch, 6 Rand. 519; Christian v. Miller, 3 Leiah 78, 23 Am. Dec. 251; Harrison v. Wortham, 8 Leigh 296.”
    
   CARR, J.

It appears by the record, that there were but eleven jurors sworn. It was suggested by the appellee’s counsel, that this might be an error of the clerk in transferring the proceedings from his minute book to the order book. Whatever power this fact might give the court below to correct the entry in the order book, I presume it gives to this court no power on that subject. For this error, therefore, the judgment must be reversed, and the cause sent back.

But there was another point argued, that presented by the bill of exceptions to the instruction given by the circuit court to the jury; and as that point will again arise in the trial there, it may not be amiss to give our ideas upon it. It was, indeed, the only point which the appeal was intended to bring up. The attempt was to set off in this action, the price of a parcel of corn, not delivered according to contract by Coleman the obligee, which formed a part of the consideration of the bond on which the action Was brought; in other words, (as it seems to me) to deduct the price of the corn from the bond, that part of the consideration having failed. This, I think, was inadmissible, upon the principle that one cannot at law, inquire into the consideration of a bond, in a case like this. Suppose the whole consideration had been corn, could the defendants have defeated the action by shewing a non-delivery? Here were two contracts. Mrs. Coleman gave her bond to pay so much money. The obligee bound himself to deliver her so much corn. Each had an action. But her’s was for un-liquidated damages, and they can never be set off against a liquidated demand. Besides, the claims were not mutual; not due in the same right. In a suit by Mrs. Christian for non-delivery of corn, the bond could not have been set off. The law is settled on this subject, both by english and american decisions; it is not ^necessary to refer to them. I think the instruction given to the jury was right.

CABELE and BROOKE, J., concurred.

TUCKER, P.

The reversal of the judgment is inevitable. The issue was tried by eleven instead of twelve jurors; which is a fatal error. It was suggested, indeed, that the minutes of the court’s proceedings might shew, that there were twelve persons sworn to try the issue, the name of one of whom was omitted by mistake in drawing up the orders. But though the complete records in the count3r courts are amendable by the minutes, since these last are the act of the court, whereas the full record is the act of the clerk in his office, yet in the circuit courts the minutes are mere memoranda of the clerk, while the orders have the sanction of the court’s authority. They are directed to be drawn up at large in the interval of the court; to be read over at its next sitting, and corrected where correction is necessary; and this for preventing errors in the proceedings. 1 Rev. Code, ch. 69, $ 46, p. 237. It would be subversive of the spirit of this provision, to consider the orders thus examined and approved, as subject to be controlled by the loose memoranda of the ministerial officer; and so this court has decided.

With respect to the point appearing in the exceptions, on which the opinion of the court is desired, I have no doubt, that the set-off was property rejected, though, perhaps, for reasons different from that which seems to have prevailed with the court below. 1st, The action was a joint action against two, and the set-off attempted was the individual demand of one of the defendants against the obligee. It is vain and useless to speculate now upon the reasonableness of permitting or refusing such a set-off: it has been too frequently settled by the practice of the courts, that such a set-off is not allowable, for the court now to act upon a different principle. Ritchie & Wales v. Moore, 5 Munf. 388; *Porter v. Nekervis, 4 Rand. 4S9. It is of very little importance, whether a defendant shall be permitted to make his discount or be driven to his cross action: but it is of vital importance, that the practice of the courts should not be in a state of continual fluctuation. If it were necessary to do more than to entrench ourselves, behind the numerous authorities on the subject, perhaps, it might not be difficult to shew, that the courts could not have extended the doctrine of set-off farther than they have done, without subjecting themselves to the just imputation of judicial legislation. It might, moreover, be possible to shew, that justice and convenience conspired to impose a limit upon the power of introducing a variety of litigations into the same action. But I content myself with resting upon the authorities just cited, as conclusive of the point. 2ndly, The discount offered in this case, would have conflicted with an established rule.» A demand for unliquidated damages cannot be set off against an ascertained demand, nor can cross demands for unliquidated damages be set off against each other. Howle v. Strickland, 1 Cowp. 56; Weigall v. Waters, 6 T. R. 488. What then, is the nature of the defendant’s demand in this case? It arises out of a breach of a contract to deliver a quantity of corn. She has paid no money and there is none therefore for her to recover back. Her only remedy, in case the plaintiff gets a judgment on her bond, is to sue Coleman for damages for failing to deliver the corn, in which she would recover not the contract price, but the value of the article at the time it should have been delivered, with interest. Bull v. Douglass, 4 Munf. 303; Merryman v. Criddle, Id. 542 ; Douglass & al. v. M’Allister, 3 Cranch, 298; Gainsford v. Carroll, 2 Barn. & Cress. 624; 9 Com. Law Rep. 204. This, then, is strictly a demand for unliquidated damages, and therefore not a proper set-off. I am not inattentive to the principle, that if the vendor of an article to be delivered at a future day under a parol contract, fails to fulfil his engagement, the buyer may dis-affirm the contract, and if he has paid his money *may recover it back on a general count of indebitatus assump-sit. For, in such case the breach by one partjr, and the disaffirmance by the other, put an end to the contract. It is no longer an open and subsisting contract (upon which general indebitatus assumpsit will not lie) but the express contract is at an end, and the implied obligation to refund the price springs up from the transaction. But this doctrine, I take it, can have no application, where the contract to pay is evidenced by deed. In such case, the buyei can neither disaffirm the contract, nor plead that the consideration has failed. Thus, if one give his bond for 500 dollars to another (100 barrels of flour to be delivered at new year’s day, being the actual consideration, though not expressed so to be) the obligor cannot disaffirm the contract upon the failure of the obligee to deliver the flour. His only remedy at law is, to submit to a judgment on the bond, and commence his action for damages. The measure of the damages, in case the price be not paid, would be the difference between the contract price and the market price at new year, when the flour should have been delivered. Gains-ford v. Carroll. But when the price has been paid, or the vendor has a judgment for it, the measure of damages is the whole value of the article at the time fixed for the delivery. Such is precisely the case here. The defendant bought corn of Coleman, and gave her bond for the price. She cannot vacate her bond by alleging the failure to deliver the corn, but she must resort to her cross action, to recover damages for the non-delivery. This, then, is strictly a right to Unliquidated, and indeed very uncertain damages; depending upon the fluctuating value of corn in our market. In every aspect of the case, therefore, I think the set-oil was properly rejected.  