majority">Chief Justice Helm

delivered the opinion of the court.

The so-called “assignment ” to Wall was executed and accepted four days after the original contract was made, and before any money became due or payable thereunder. Its legal effect was simply to incorporate into the original contract a new condition, viz.: that Wall, instead of Morril & Liggett, should be the payee of the $10 cash payments provided for therein. In this respect Wail stepped into the shoes of Morril & Liggett. Besides, there is no proof that the amount sued for became due before the damages complained of by Smith had been suffered; and, under the circumstances, we think that, if the right of recoupment would have existed in favor *366of Smith as against Morril & Liggett had they retained ownership of the entire proceeds, he should have been allowed to make proof thereof against Wall & Wood, who had, previous to the action, succeeded to the rights of Wall in the premises. It was therefore error to reject the evidence offered by Smith to establish and recoup his damages suffered through the breach of contract.

There is some testimony to the effect that Smith, in conversation with Wall & Wood, set a time for the payment of the amount claimed by them; and there is also evidence tending to show that after the breach of contract Smith, having received back the saw-mill he had contracted to sell Morril & Liggett, stated to Morril that he considered the matter settled as between them (Smith and Morril).

This evidence could hardly have been offered to show an accounting and settlement, for no such issue was made by the pleadings. If it could be regarded as in any way tending to establish a legal waiver of the claim for damages, there was a clear conflict, and it should have been submitted to the jury.

The judgment is reversed.

Reversed.

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