Tuttle v. Tompkins

2 Wend. 407

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the Court, Marcy, J.

The plaintiff in error contends that the amount of the claim proposed to he set off was, as soon as it accrued, a payment of so much rent, and consecluen^y the true sum due to the plaintiff below could not be ascertained, without investigating and settling that claim. I regard the covenants to pay rent to the lessor, and to allow the lessee for the improvement of the premises, as distinct and independent. The rent was payable quarterly, and consequently, at the close of the term, there would not have been due, if the stipulations of the lease had been punctually complied with, but one quarter, amounting to one hundred dollars ; whereas the claim for the improvements, which did not exist till the term had expired, might have exceeded that sum. Taking into view the subject matter of the covenants, and the language in which they are expressed, it does not appear that the payment of the lessee’s claim was precedent to the right to receive rent.

Could the claim of the lessee, for leaving the premises in better repair than they were in at the commencement of the term, be set off against the lessor’s claim for arrears of rent 1 To recover what the defendant below offered as a set-off, he must have sued on the covenant in the lease. It is well settled, that damages for the breach of one covenant in an instrument, cannot be set off against a claim for damages for the breach of another covenant in the same instrument. ( Cowper, 56.) It was urged that the defendant’s claim was of such a nature that it might be recovered in an action of indebitatus assumpsit, and if so, it was a proper matter for a set-off. In this I apprehend there is a mistake. The claim of the defendant arises under the covenant, and without that, he has no cause of action or foundation for his demand. It was for unliquidated damages.

In the case of Weigall v. Waters, (6 T. R. 488,) the tenant expended thirty pounds, as he stated in his plea, for the repair of the premises, which he contended the landlord ought to have repaired, and offered to set off that amount against the rent. It was held by Lord Kenyon, that if the defendant had a claim for the repairs, there was no pretence for saying that it could be set off, because the debt or demand was uncertain. But it was not as uncertain as the claim of the plaintiff in error ; for the jury, in order to have ascertained the amount of his claim, must have assessed, not only the value of the repairs, but must have ascertained the increase in the value of the mill at the expiration of the term, compared with its value at the time the defendant took possession of it, arising from the repairs put upon it by the defendant. This would have involved a complicated inquiry, and presented a very different question to the jury from that on jvhich they would have to pass, if called upon to assess the value of articles sold, or even services performed. - In no sense can this claim assume the character of a debt, and unless it does, it cannot be a matter of set-off under the-construction which has been given to our statute relative to set-offs. (2 Johns, R. 155. 3 Johns. C. R. 357.)

The demand which was offered to be set off was as uncertain as that which was offered to be set off in the case of Hepburn v. Hoag, (6 Cowen, 613,) and the authority of that case, I think, disposes of this.

Judgment affirmed.