Tracey v. Grant

137 Mass. 181, 1884 Mass. LEXIS 217

Opinion

C. Allen, J.

1. The plaintiff’s demand was for an unliquidated sum. He sought to recover damages for the defendant’s refusal to perform his promise. That promise, as alleged, was to pay a certain sum of money and to transfer a certain number of shares. This promise was alleged to have been broken; and, for the breach, the plaintiff claimed damages. These damages were unliquidated, and could not be ascertained by calculation, but would depend upon a consideration of how much the plaintiff was entitled to recover for the breach of the whole agreement of the defendant. No set-off, therefore, could be allowed. Pub. Sts. c. 168, §§ 3, 7.

2. The plaintiff might properly take the objection at the trial, though no demurrer had been filed. Montague v. Boston § Fairhaven Iron Works, 97 Mass. 502. Hubbard v. Mosely, 11 Gray, 170. Exceptions overruled.