
    W. Haynes vs. N. B. Prothro.
    An independent demand for unascertained damages arising ex contractu, held to be admisible as set-off.
    BEFORE MUNRO, J., AT CHARLESTON, OCTOBER, 1856.
    Tbe report of Ms Honor, tbe presiding Judge, is as follows:
    “ Tbis was a summary process for work, labor, and materials. Tbe plaintiff proved bis demand. Tbe defendant set up as a discount, damages arising from tbe breach of tbe following independent contract:
    “ Charleston, October 18th, 1855.
    “I hereby agree with N. B. Protbro, to fill bis Water Lot, fronting on Wasbington street, about fifty feet, and extending east from said street to tbe east end of office belonging to said Protbro, being two hundred and ten feet, more or less ; and from tbe bridge on south line, to lot filled up on North line. Tbe above Lot to be filled with sawdust and chips or shavings, with one foot in depth on tbe top, of solid filling, such as dirt, or dirt and brickbat mixed, not being objected to by said Protbro ; when completed to be within six inches of tbe top of bridge on tbe south side, of the same height and level all over.
    Tbe work to be completed by 1st of May, 1856, and tbe same to be paid for in full on tbe first day of May, 1856, at tbe sum of three hundred and twenty dollars.
    “WM. HAYNES.
    “ I agree to give tbe above price for filling said Lot, on tbe condition above mentioned.
    “N. B. PROTHRO.
    
      “ The testimony was conflicting as to whether this lot was properly filled according to the contract, or not. The witnesses for the defendant, however, testified, that the plaintiff had agreed to do other work in the place of that, which defendant complained had not been done under the contract. This other work was never done. The value of it was estimated at about eighty dollars. There was a balance due on the original contract, which made the amount about the same. I decreed for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds ;
    1. That the discount filed, was not properly admissible.
    2. That the plaintiff’s claim was fully made out; and the defendant having filed a discount, and being bound to prove every thing necessary t'o maintain his discount, failed therein. The strong weight of evidence being that the contract in Washington street had been fulfilled.
    3. That the defendant should have been confined to evidence of damage arising from failure of plaintiff to fill defendant’s lot in Washington street; whereas there was no proof of such damage, or the amount thereof; and that evidence of purported promises of plaintiff to do other work, outside of the contract, and of the value thereof, was not properly admissible under the discount filed, and took the plaintiff by surprise.
    
      Thos. Pi Simms, Jr., for the motion:
    1st. Unliquidated damages, arising from the breach of an independent contract, are not proper subjects of discount. The class of cases of which Kwart vs. Kerr, Eice Eep. 206, is the representative, were dependent mutual contracts. .
    
      In Whisehart vs. Towers, 2 Eich. 110, tbe amount was liquidated, and fixed by tbe contract.
    Cited in support, Gooh vs. Rhine, 1 Bay, Eep. 16; Mitchell vs. Gibles, 2 Bay, Eep. 120; Lightner vs. Martin, 2 McC. Eep. 214; A. A. 1759, P. L. 247.
    ■ 2nd. There was no evidence of damages from alleged breach of contract.
    8d. Tbe evidence of promises to do other work, outside of tbe contract, was incompetent, and acted as a surprise, and if competent, then insufficient.
    
      Whaley & Lord, contra,
    cited, Richardson vs. Provost, 4 Strob. 58 ; Dud. 60.
   Tbe opinion of tbe Court was delivered by

MüNRO, J.

ANe can perceive no such discrepancy between tbe defendant’s discount, and tbe evidence that was adduced to sustain it, as was calculated to take tbe plaintiff by surprise, and therefore proceed at once to tbe consideration of tbe plaintiff’s second objection; which is, that, unliquidated damages arising out of an independent contract, are not admissible by way of discount, under tbe Act of 1759.

A defence which arises out of tbe plaintiff’s cause of action, can with no sort of propriety be termed a discount, or set-off. Technically'speaking, a discount is a counter demand, which tbe defendant bolds against tbe plaintiff, arising out of a transaction extrinsic to tbe plaintiff’s cause of action. j It is true, that failure of consideration, a defence which arises out of the plaintiff’s cause of action, as for instance, a deficiency in the quantity, or a defect in the quality of a com-' modify sold; and that which is the subject matter of discount, technically so called, are not unfrequently confounded, and no small amount of dicta to that effect is to be found in our own reported cases. Tbe distinction between these two modes-of defence is, however, well taken by Judge Nott, in the case of Lightner ads. Martin, 2 McC., 214, where he says — “ The defence of unsoundness of property which is allowed to be set-off against a note of hand, or a bond, is usually, but I think improperly, considered a set-off. A set-off means a counter demand which the defendant has against the plaintiff; and although our set-off Act is very comprehensive in its terms, (embracing every cause, matter or thing,) yet it has always been restricted in its construction to damages arising on contracts.”

But it is argued, that nothing but liquidated damages are admissible under our discount Act.

■ If by the phrase “liquidated damages” or “liquidated demands,” it be meant, that nothing can be set up as a discount, except a bond, a note, or an ascertained debt due from the plaintiff to the defendant, then is'the remark of Judge Nott, as to the comprehensiveness of our discount Act, founded in error. Certain it is, that nothing can be found, either in the language of the Act, or in the practice of our Courts, to prevent such a construction. On the contrary, it has never been doubted, but that to an action, either upon a liquidated, or unliquidated demand, it was competent for the defendant to set up in discount, a demand for work and labor, or services rendered, founded upon a quantum meruit. If.then it be competent for a defendant to rely upon such unliquidated demand, what good reason can be assigned for excluding a claim for damages arising out of the plaintiff’s failure to. perform a similar undertaking.

Without affirming that any matter arising ex contractu may be the subject of discount; this much we may venture to affirm:

1. Neither the cause of action, nor the discount must be the offspring of a tort, but must arise ex contractu.

2. They must be mutually subsisting demands, at the time the action is brought.

As this view may seem to conflict with what is said in the case of Gibbes vs. Mitchell, 2 Bay, 351, it may be proper to notice it more particularly. In speaking of the discount Act, it is said, “ The discount law never meant, that torts, trespasses, or any unascertained damages, should be- set off. That it contemplated debts, dues, and demands of a pecuniary nature, or something springing out of a contract, where there were mutual covenants, which depended one upon the other, and no other kinds of discounts had ever been offered, or allowed in our Courts of justice.’’

Now the discount that was set up in that case, consisted of three items, two of which were for torts, and the third for money had and received; and the only question the Court was called upon to decide, and the only one which it professed to decide, was, that the demand for money had and received was admissible as a discount, but that the torts were not; so that all that is said about unascertained damages, and mutual covenants, is purely obiter.

We are therefore of opinion, that the defendant’s discount was clearly admissible under the Act of 1759, so that the plaintiffs motion must be dismissed; and it is so ordered.

O’Neall, Wardlaw, Withers, and Whither, JJ., concurred.

Motion dismissed.  