
    Stephens vs. Beard.
    Compensation for the part performance of a contract by a defendant cannot be set-off against the damages of the plaintiff occasioned by the non-performance of the residue : and it was accordingly holden, where one party agreed to saw by a given time 300,000 feet of boards at a stipulated price per 1000 feet, and failed to saw the whole quantity, that though he had sawed 144,000 feet, which had been received by the other party, that a compensation for the quantity sawed could not be set-off against the claim for damages for the omission to saw the residue.
    This was an action of assumpsit, tried at the Chenango circuit in December, 1828, before the Hon. Samuel Nelson, one of the circuit judges.
    
      The defendant contracted, on the 1st June, 1827, to saw sucha quantity of logs for the plaintiff by the 1st April then next as would make 300,000 feet of boards, for which the plaintiff agreed to pay $2 per 1000 feet; the logs to be furnished by the plaintiff. By the 1st December, 1827, the defendant had sawed 144,000 feet, which were accepted by the plaintiff; but the defendant then refused to saw any more for the plaintiff, although a sufficient quantity of' logs were fur-, nished by the plaintiff to have enabled the defendant to have completed his contract. The plaintiff brought his action to recover damages for the non-performance of the contract, and obtained a verdict of $194.
    A motion was made fór a new trial on various grounds; and amongst others, for misdirection by- the judge, and' that the damages found were not warranted by the evidence. The charge of the judge was sustained by the court. The principal question arising upon the case refers to the right of the defendant to set off his claim for the boards actually sawed by him, against the claim of the plaintiff for damages. In refer-, ence to this question only, the case is reported.
    
      R. Monell Sf J. A. Collier, for defendant.
    
      J. Clapp, for plaintiff.
   By the Court,

Sutherland, J.

If the defendant was entitled to an allowance in this action, by way of off set or otherwise, for sawing the 144,000 feet of boards, which were actually delivered to the plaintiff, in part performance of this contract, then the verdict is against evidence as to the quantum of damages.

The contract of the defendant was entire to saw 300,000 feet of boards for the plaintiff before the first of April, 1828, at $2 per thousand feet. It is admitted that the plaintiff did every thing which it was incumbent upon him to do to enable the defendant to perform, -and that the defendant was not prevented from performing by any inevitable accident. His mill was capable of sawing the whole quantity within the time limited. But after he had sawed 144,000 feet for the plaintiff, he ceased sawing for him and sawed for himself and other persons. The question is whether, in an action "brought against him upon this contract to recover damages for his neglect to saw the residue of the boards, the defendant is entitled to compensation, by way of off set or in mitigation of damages, for his work and labor in sawing the 144,000 feet which were actually delivered.

That the defendant could not have maintained an action against the plaintiff, either on the special agreement or for work, labor and services, for what he had done in part performance of his contract, there can be no question. The contract was entire, and an entire performance, unless prevented or excused by the plaintiff, was indispensible to any right of action, in any form on his part. (McMillan v. Van Derlip, 12 Johns. R. 165. Jennings v. Camp, 13 Johns. R. 94. Ketchum & Sweet v. Evertson. 13 Johns. Rep. 359, and the authorities cited in those cases.)

If the defendant could not maintain an action for those services, he could not off set them in any suit brought by the plaintiff against him ; for no demand can be off set at law, upon which an action at law cannot be maintained. (Montague on Set off, 17, et sequ. 2 Johns. Dig. 355, and cases there referred to.)

Upon what principle then, and in what manner is the defendant to be allowed the benefit of his partial performance ? The plaintiff claims damages for the neglect or refusal of the defendant to saw the 156,000 feet of boards, parcel of the 300.000 feet which he had agreed to saw. ' The defendant admits the violation of his contract, and that so far as the 156.000 feet are concerned, the plaintiff had sustained damages by his non-performance, at least to the amount of $100. But then, he says, “ I performed the residue of the contract and sawed for him 144,000 feet, my services in doing which were worth to him $2 per thousand feet, by his own admission ; and, in estimating his damages in consequence of my partial non-performance, the benefit received by him from my partial performance is to be taken into account and to be deducted.” This reasoning must be fallacious. The fallacy, I apprehend, is this: The action, though in form it alleges ■an entire breach of the contract, is, in fact, for the omission of the defendant to saw the 156,000 feet, and the claim for damages is confined to that. The defendant has the benefit of his partial performance; having been accepted by the plaintiff, it is pro tanto an answer to this action, and leaves the parties in the same condition as though the contract had been to saw 156,000 feet, and had been entirely unperformed. The defendant cannot, in this indirect manner, recover for services which, by the established principles of law, he cannot recover for directly.

If this claim is excluded, the damages given are fully warranted by the evidence.

I am of opinion that the motion for a new trial should be denied.  