pecuniary standard in Alabama

1909It is next insisted that said plea is subject to the cause of demurrer, “for that said plea sounds in damages merely.” “A debt or demand ‘not sounding in damages merely’ is one which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard.” — Code 1907, § 5859; Cage & Salter v. Phillips, 38 Ala. 382 .

1889Damages capable of being thus measured by a pecuniary standard, may be the subject of set-off at law under section 2678 of the Code. — Cage v. Phillips, 38 Ala. 382 ; Sledge v. Swift, 53 Ala. 520 ; Collins v. Green, 67 Ala. 211 .

1883If the damages are capable of legal measurement by a pecuniary standard, as if they consist,only of the value of use and occupation during the continuance of the trespass, they would form proper matter of set-off to an' actioii by the landlord for the recovery of rent .—Cage v. Phillips, 38 Ala. 382 ; Holley v. Younge, 27 Ala. 203 ; Kannady v. Lambert, 37 Ala. 57 .

1857In the case of Holley v. Younge, 27 Ala. 203 , section 2240 of the Code was construed to authorize a set-off, where the defendant was entitled to recover, at law, damages which the law was capable of measurihg accurately by a pecuniary standard.

1988In estimating damage, the jury will consider the age, health and occupation of deceased, and the comfort and support afforded to his family, and confine themselves to the actual and such other damage as would afford the family of deceased the same support they would have obtained from his labor during the time he would probably have lived; that in such cases the law looks only to such damage as can be reduced to a pecuniary standard, and they should only find such pecuniary damage as they deem just." In South North Alabama R.R. v. Sullivan , 59 Ala. 272 (1877), the Court relied on Savannah M.R

1988In estimating damage, the jury will consider the age, health and occupation of deceased, and the comfort and support afforded to his family, and confine themselves to the actual and such other damage as would afford the family of deceased the same support they would have obtained from his labor during the time he would probably have lived; that in such cases the law looks only to such damage as can be reduced to a pecuniary standard, and they should only find such pecuniary damage as they deem just." In South & North Alabama R.R. v. Sullivan, 59 Ala. 272 (1877), the Court relied on Savannah &

1988In estimating damage, the jury will consider the age, health and occupation of deceased, and the comfort and support afforded to his family, and confine themselves to the actual and such other damage as would afford the family of deceased the same support they would have obtained from his labor during the time he would probably have lived; that in such cases the law looks only to such damage as can be reduced to a pecuniary standard, and they should only find such pecuniary damage as they deem just." In South North Alabama R.R. v. Sullivan , 59 Ala. 272 (1877), the Court relied on Savannah M.R

1988In estimating damage, the jury will consider the age, health and occupation of deceased, and the comfort and support afforded to his family, and confine themselves to the actual and such other damage as would afford the family of deceased the same support they would have obtained from his labor during the time he would probably have lived; that in such cases the law looks only to such damage as can be reduced to a pecuniary standard, and they should only find such pecuniary damage as they deem just." In South North Alabama R.R. v. Sullivan , 59 Ala. 272 (1877), the Court relied on Savannah M.R

1933True, the language employed is not in the wording of authorities cited by appellant, as in Merchants’ National Bank v. Demere, 92 Ga. 735 , 19 S. E. 38, 39 , “any general balance due or to become due,” or “any other liability,” as in Cross v. Brown (R.

1933True, the language employed is not in the wording of authorities cited by appellant, as in Merchants’ National Bank v. Demere, 92 Ga. 735 , 19 S. E. 38, 39 , “any general balance due or to become due,” or “any other liability,” as in Cross v. Brown (R.

1923Copeland v. Union Nursery Co., 187 Ala. 148 , 65 South. 834 ; Morris v. Bank of Attalla, 153 Ala. 352 , 45 South. 219 ; Johnson v. Aldridge, 95 Ala. 77 , 9 South. 513 ; Middleton v. Foshee, 192 Ala. 265 , 68 South. 890 . [2] In Morris v. Bank of Attalla, supra, the suit was in trover and in case, and it was *227 held that a plea setting up an action of trover for the conversion of other chattels by the plaintiff was a proper plea of set-off.

1923Copeland v. Union Nursery Co., 187 Ala. 148 , 65 South. 834 ; Morris v. Bank of Attalla, 153 Ala. 352 , 45 South. 219 ; Johnson v. Aldridge, 95 Ala. 77 , 9 South. 513 ; Middleton v. Foshee, 192 Ala. 265 , 68 South. 890 . [2] In Morris v. Bank of Attalla, supra, the suit was in trover and in case, and it was *227 held that a plea setting up an action of trover for the conversion of other chattels by the plaintiff was a proper plea of set-off.

1923Copeland v. Union Nursery Co., 187 Ala. 148 , 65 South. 834 ; Morris v. Bank of Attalla, 153 Ala. 352 , 45 South. 219 ; Johnson v. Aldridge, 95 Ala. 77 , 9 South. 513 ; Middleton v. Foshee, 192 Ala. 265 , 68 South. 890 . [2] In Morris v. Bank of Attalla, supra, the suit was in trover and in case, and it was *227 held that a plea setting up an action of trover for the conversion of other chattels by the plaintiff was a proper plea of set-off.

1923Copeland v. Union Nursery Co., 187 Ala. 148 , 65 South. 834 ; Morris v. Bank of Attalla, 153 Ala. 352 , 45 South. 219 ; Johnson v. Aldridge, 95 Ala. 77 , 9 South. 513 ; Middleton v. Foshee, 192 Ala. 265 , 68 South. 890 . [2] In Morris v. Bank of Attalla, supra, the suit was in trover and in case, and it was *227 held that a plea setting up an action of trover for the conversion of other chattels by the plaintiff was a proper plea of set-off.

1923Copeland v. Union Nursery Co., 187 Ala. 148 , 65 South. 834 ; Morris v. Bank of Attalla, 153 Ala. 352 , 45 South. 219 ; Johnson v. Aldridge, 95 Ala. 77 , 9 South. 513 ; Middleton v. Foshee, 192 Ala. 265 , 68 South. 890 . [2] In Morris v. Bank of Attalla, supra, the suit was in trover and in case, and it was *227 held that a plea setting up an action of trover for the conversion of other chattels by the plaintiff was a proper plea of set-off.

1923Copeland v. Union Nursery Co., 187 Ala. 148 , 65 South. 834 ; Morris v. Bank of Attalla, 153 Ala. 352 , 45 South. 219 ; Johnson v. Aldridge, 95 Ala. 77 , 9 South. 513 ; Middleton v. Foshee, 192 Ala. 265 , 68 South. 890 . [2] In Morris v. Bank of Attalla, supra, the suit was in trover and in case, and it was *227 held that a plea setting up an action of trover for the conversion of other chattels by the plaintiff was a proper plea of set-off.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1916Co. v. Smith Lumber Co., 178 Ala. 472 , 59 South. 455 ; 2 Paige on Contr., § 1175.

1916Co. v. Smith Lumber Co., 178 Ala. 472 , 59 South. 455 ; 2 Paige on Contr., § 1175.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1916Co. v. Geiss, 143 Ala. 591 , 39 South. 255 ) that may be “a matter of easy ascertainment,” or that can be calculated with “any degree of certainty” and .is “susceptible of measurement by a pecuniary standard. ”—Strat ton v. Fike, 166 Ala. 203, 209 , 51 South. 874 ; Henderson-Boyd Lumber Co. v. Cook, 149 Ala. 226 , 42 South. 838 ; Keeble v. Keeble, 85 Ala. 552 , 5 South. 149 ; McPherson v. Robertson, 82 Ala. 459 , 2 South. 333 ; Dees v. Self Bros., supra; Walshe Mfg.

1912Rep. 716 , (s. c., 145 Pa. 606 , 23 Atl. 323 ), Avhere the rule is thus stated: “In ascertaining whether a sum stipulated as payable for breach of a contract is a penalty or liquidated damages, the rule is that, if the damages resulting from the breach can be definitely computed, the stipulated sum must be construed as a penalty; but, where such damages are not susceptible of admeasurement by a pecuniary standard, then the sum stipulated must be regarded as liquidated damages.” Other cases to the same effect are cited from the courts of other states in a note to section 1175 of 2 Page on Contr

1912Rep. 716 , (s. c., 145 Pa. 606 , 23 Atl. 323 ), Avhere the rule is thus stated: “In ascertaining whether a sum stipulated as payable for breach of a contract is a penalty or liquidated damages, the rule is that, if the damages resulting from the breach can be definitely computed, the stipulated sum must be construed as a penalty; but, where such damages are not susceptible of admeasurement by a pecuniary standard, then the sum stipulated must be regarded as liquidated damages.” Other cases to the same effect are cited from the courts of other states in a note to section 1175 of 2 Page on Contr

1907Whatever may have been the doubts theretofore existing, Hamilton v. Griffin, 123 Ala. 600 , 26 South. 243 , Burns v. Reeves, 127 Ala. 327 , 28 South. 554 , and Debtor v. Henry, 144 Ala. 552 , 39 South. 72 , finally settle the law, that under section 3728 of the Code of 1896, any demand capable of measurement in a legal sense by a pecuniary standard, not sounding in damages merely, may be set off against that claimed, whether the action be ex contractu or ex delicto.

1907Whatever may have been the doubts theretofore existing, Hamilton v. Griffin, 123 Ala. 600 , 26 South. 243 , Burns v. Reeves, 127 Ala. 327 , 28 South. 554 , and Debtor v. Henry, 144 Ala. 552 , 39 South. 72 , finally settle the law, that under section 3728 of the Code of 1896, any demand capable of measurement in a legal sense by a pecuniary standard, not sounding in damages merely, may be set off against that claimed, whether the action be ex contractu or ex delicto.

1907Whatever may have been the doubts theretofore existing, Hamilton v. Griffin, 123 Ala. 600 , 26 South. 243 , Burns v. Reeves, 127 Ala. 327 , 28 South. 554 , and Debtor v. Henry, 144 Ala. 552 , 39 South. 72 , finally settle the law, that under section 3728 of the Code of 1896, any demand capable of measurement in a legal sense by a pecuniary standard, not sounding in damages merely, may be set off against that claimed, whether the action be ex contractu or ex delicto.

1905It follows that the demand laid in the plea does not sound in damages merely within section 3728 of the Code. — Nelms v. Hill, 85 Ala. 583 .

1889And any demand which a mortgagor might set off against the secured debt, in a suit at law for its recovery, he may set off against the debt when it is sought to be enforced in equity by a bill to foreclose the mortgage. — Gafford v. Proskauer, 59 Ala. 264 ; Knight v. Drane, 77 Ala. 371 .

1889Damages capable of being thus measured by a pecuniary standard, may be the subject of set-off at law under section 2678 of the Code. — Cage v. Phillips, 38 Ala. 382 ; Sledge v. Swift, 53 Ala. 520 ; Collins v. Green, 67 Ala. 211 .

1889And any demand which a mortgagor might set off against the secured debt, in a suit at law for its recovery, he may set off against the debt when it is sought to be enforced in equity by a bill to foreclose the mortgage. — Gafford v. Proskauer, 59 Ala. 264 ; Knight v. Drane, 77 Ala. 371 .

1888As long ago as in 1859, in Walker v. McCoy, 34 Ala. 659 , it was held, that where tbe defendant’s cause of action is recoverable only in an action de bonis asportatis, tbe demand was one sounding in damages merely, and was excluded from tbe statute of set-off, on tbe ground that, vindictive damages being recoverable, the law did not furnish a pecuniary standard of measurement.

1888This ruling was re-affirmed in Rosser v. Bunn, 66 Ala. 89 , and is decisive of the unavailability as a set-off of the defendant’s cause of action set forth in the plea.

1883If the damages are capable of legal measurement by a pecuniary standard, as if they consist,only of the value of use and occupation during the continuance of the trespass, they would form proper matter of set-off to an' actioii by the landlord for the recovery of rent .—Cage v. Phillips, 38 Ala. 382 ; Holley v. Younge, 27 Ala. 203 ; Kannady v. Lambert, 37 Ala. 57 .

1883Or if the damages are unliquidated, and not capable of legal measurement by a pecuniary standard, they will form matter for recoupment in an action by the landlord for the recovery of rent. —Lynch v. Baldwin supra ; Batterman v. Pierce, 3 Hill, 171 .

1883Or if the damages are unliquidated, and not capable of legal measurement by a pecuniary standard, they will form matter for recoupment in an action by the landlord for the recovery of rent. —Lynch v. Baldwin supra ; Batterman v. Pierce, 3 Hill, 171 .

1880Sledge v. Swift, 53 Ala. 110 , and authorities cited; Rosser v. Bunn, at the present term.

1868In an action on a promissory note, by an endorsee against the maker, under the facts shown by the record in this case, which note was given for the purchase-money due on the sale of mules guaranteed to be sound by the payee, the purchaser may recoup the damages he may have sustained by the breach of the guaranty, which the law is capable of measuring accurately by a pecuniary standard. — Hatchett & Bro. v. Gibson, 13 Ala. 587 ; Cage et al. v. Phillips, 38 Ala. 382 ; Wood et al. v. Fowler, 37 ib. 55 ; Sill v. Rood, 15 John R. 230; Sedg. on Dam. 431, et seq. and notes.