Ellsworth v. Brown

55 N.H. 396, 1875 N.H. LEXIS 95

Opinions

The auditor having found that the plaintiff's claim for damage on account of the breach of the special contract is greater than the amount of the plaintiff's claim after deducting the set-off, and it being conceded, according to the doctrine of Britton v. Turner, 6 N.H. 481, that the defendant cannot recoup in damages beyond the amount of the plaintiff's claim, he desires to apply his damages in the first place to the plaintiff's claim, and take judgment for the balance which will then be due on his set-off.

But the auditor has found that the items of the set-off were delivered and received in payment of the plaintiff's claim. This being so, no right of action existed on the items of the set-off at the commencement of the action, and nothing can be recovered upon it.