Debter v. Henry

39 So. 72, 144 Ala. 552, 1905 Ala. LEXIS 24

Opinion

McCLELLAN, C. J.

Upon the facts averred in the jilea of set-off the damages claimed are measurable in a legal sense by a pecuniary standard, viz., so much of defendant’s debt against Hudson as jilaintiff’s tort prevented his recovering, with interest. It follows that the demand laid in the plea does not sound in damages merely within section 3728 of the Code. — Nelms v. Hill, 85 Ala. 583.

It may be regarded as settled by the1 later adjudications of this court that any demand, not .sounding in damages merely, may be set off against any other demand, not sounding in damages merely, whether the cause of action be ex contractu or ex delicto and the demand sought to be set-off arose upon contract or upon a, tort. — Hamilton v. Griffin, 123 Ala. 600; Burnes v. Beeves, 127 Ala. 127, 132.

The jilea of set-off was good, at least against any g;round of demurrer assigned; and the circuit court erred in its ruling to the contrary.

Reversed and remanded.

Haralson, Dowdell and Denson, JJ., concurring.