Legal Opinion · Dissent

Ellsworth v. Brown

Supreme Court of New Hampshire

Decided March 12, 1875Published

Assumpsit, by John B. Ellsworth against Bradbury T. Brown. The cause was sent to an auditor, who represents as follows: “ I allow the items of the plaintiff’s specifications as follows, viz.: Dec. 6, 1872, To drawing 7,643 cubic feet at 115 per M. to $4.50 per M., $299.07 Eeb. 27, 1873. To drawing 22,090 feet at 3 dollars per M., 66.27 $365.34 I allow the defendant upon the items of his set-off and a bill of goods purchased of Dearborn & Merrill, 333.87 $31.47 I find that…

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Assumpsit, by John B. Ellsworth against Bradbury T. Brown. The cause was sent to an auditor, who represents as follows: “ I allow the items of the plaintiff’s specifications as follows, viz.: Dec. 6, 1872, To drawing 7,643 cubic feet at 115 per M. to $4.50 per M., $299.07 Eeb. 27, 1873. To drawing 22,090 feet at 3 dollars per M., 66.27 $365.34 I allow the defendant upon the items of his set-off and a bill of goods purchased of Dearborn & Merrill, 333.87 $31.47 I find that the 7,643 cubic feet of timber was drawn under a special contract, which said contract was broken by the plaintiff prior…

1Dissent

The defendant filed a set-off, and also at the trial before the auditor, as it seems, claimed a deduction by way of recoupment from any sum found to be due the plaintiff, on account of the plaintiff's failure to perform the special contract under which the work was done. This course was open to him, or he might rely on the set-off alone and bring a separate suit for the damage. But when he elected to take the former course, I think he precluded himself from recovering a balance, unless such balance should be found his due upon the set-off alone without recourse to the claim for damages.…

2Cases cited1 opinion

  1. Blodgett v. Berlin Mills Co.Supreme Court of New Hampshire · 1872

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