Salisbury & Taylorsville Plank Road Co. v. Allison

50 N.C. 311

• Court: Supreme Court of North Carolina
• Decided: June 5, 1858
• Status: Published

Opinion

Battle, J.

The matter which the defendant set up as a •defense to the action, could not avail him under either of his pleas. It manifestly could not be used under the general issue, nor was it a set off. It was not a payment, nor an accord and satisfaction, because the work was not completed. It may be true, that it was the fault of the plaintiff that the work was not done, and that such default may give the defendant a good cause of action against the plank road company ; but what was not done, cannot in law be considered as done, so as to amount to a payment or satisfaction.

The insolvency of the company, audits consequent inability to pay the damages which the defendant might recover against it for a breach of its contract, cannot, in a court of law, make-any difference, and it is no part of our duty to decide now, whether any other tribunal can give relief. The charge of' his Honor, in the Court below, was entirely correct, and the judgment must be affirmed.

Pee Cueiam, Judgment affirmed-