James W. Hall and Lucius M. Merritt, Partners, as J. W. Hall & Co., Appellants, vs. William Penny, Appellee, 13 Fla. 621

WESTCOTT, J., delivered the opinion of the court. Defendant could have beeix entitled to set-off the amount ^allowed by the court in this case only upon one hypothesis, viz : That plaintiff’s conduct was of such character as gave Mm a right of action in which the measure of his damage was the value of this lumber at Pensacola. If defendant has any right of action in this mattei’, his remedy is either an action on the case for a wrongful sale or trover for a conversion.

This is not the proper subject matter of a set-off, and the evidence to establish the tort was inadmissible under a plea of set-off of money had and received, or moneys due for goods sold and delivered. In this action defendant may have waived the tort, and under his plea of set-off for moneys had and received he may have perhaps been entitled to set-off the proceeds of sale at Indianola. 2 Greenlf. Ev., 117, 120; 5 Pick., 285 ; 10 Pick., 161; 3 Gray, 260; 7 Cush., 442 ; 5 Met., 73. This sum he might have recovered in an action of assumpsit, and we can see no reason why he may not have pleaded it as a set-off.

If he does not desire to accept this sale as the measure of his damage, then he must bring such independent action as he thinks appropriate. Had this case actually gone to a jury, the court must have so instructed them as to the law. A verdict of the jury corresponding with the conclusion of the court as to the damages, must have been set aside as ■ contrary to the law of the case. The law as applied to the issues and the evidence* did not justify the allowance of the estimated value of the cargo at Pensacola.

Even in those exceptional cases where the defendant can avail himself by way of set-off of acts of non-feasance or'misfeasance of the plaintiff, such a defence does not authorize the court to certify a sum as due by plaintiff to the defendant. Wat. on Set-off, 168. The action of the court was not in accordance with the law applicable to the facts and pleadings. As to the other matters discussed, which involve a consideration of the facts, we deem it proper to say nothing, as the case must again go to a jury. Judgment reversed and new trial awarded.