#### SAMUEL J. WHEELER vs. PHILIP DUNN.

When tipoa a contract for work to be done, the party who is to do (he work agrees to be answerable for lost time, the demand for this lost tima is in the nature of unliquidated damages, and cannot be set off; but when the party afterwards acknowledges in. a letter how much he owed for suchlosttimo, indebitatus assumpsit may be brought for it.

Appeal from the Superior Court of Law of Lincoln County, at the Spring Term, 1845, his Honor Judge Baxley presiding.

The case was, that the defendant had been in the employment of the plaintiff, and that it was the understanding or agreement of the parties, that the former should make up to the latter the time he should lose. Upon the termination of *381the service, the defendant sued the plaintiff for the work done, and recovered a judgment, which Wheeler paid. This action, by warrant, is brought by the plaintiff to recover the value of the time that whs lost by the defendant during his employment. The defendant, among other things,- pleaded set off and former judgment. The only evidence produced by the plaintiff, was the record of the case, in which Dunn, the present defendant,- sued the present plaintiff, and a letter from the former to the latter. In the suit Dunn against Wheeler, the latter pleaded a set off, and filed his account, containing many items of articles furnished Dunn,.and money paid him; which account is set forth in the record. Dunn obtained his judgment at November Term, 1840, of Hertford County Court, and the letter of Dunn to Wheeler is dated January, 1841. In this letter Dunn writes: “Yours of the 20th December is at hand.- You say you were surprised I had sued you ; if you recollect you told me to sue you. I told you at the time 1 did not wish to do so. The bill I let you have of work done, amounted to $146 Í8 — what 1 received, lost time, board at Carters while I was sick, amounted to $41 49, besides the $10 bill I got since that, reduced my account to $95, with interest; I would prefer it should be sent by mail.” The defendant introduced no testimony, but relied upon the account exhibited by the plaintiff, to show that the claim of Wheeler against him for time lost had been settled in the former suit. It was urged by him, that the sum of eight dollars paid Carter for board, and the $10 charged as cash in Wheeler’s account, were offered as sets off upon the trial in Hertford County Court, and could not be recovered in this action,- and that there was evidence of a set off, for time lost. The jury were instructed,- that the letter of the defendant was evidence, that the defendant was indebted to the plaintiff $51 49, unless the same had been allowed Wheeler in the former suit, or had been offered by him as a set off and passed on by the jury, and that the account exhibited by him was evidence that the money paid Carter and the $10 paid Dunn had been offered by him, under his plea, and *382could not be recovered ; but that there was no evidence of set ^01' l°ss of time, and that the plaintiff was entitled to recover the amount of his claim, deducting those two items. rp^ jmy retumed a verdict for the plaintiff.

The defendant moved for a new trial upon two grounds : 1st. That there was evidence of a set off, for loss of time, as well as for the money paid Carter, and the money paid Dunn. 2nd. That loss of time sounded in damages, and could not be set off, and if any recovery could be effected in this case, it could not be by warrant.

Judgment being rendered for the plaintiff, the defendant appealed.

Iredell for the plaintiff

Alexander and Boyden for the defendant.

Nash,- J.

We perceive no'error in the charge. The only contest between the parties is, as to the time lost. The case sufficiently shows, it was part of the contract, that Dunn, the defendant, should account for the time he should lose. This is evidenced by Dunn’s letter, and is indeed admitted by the defence in claiming, that a charge for it was contained in the account filed by Wheeler in Dunn’s suit against him. We are at a loss to perceive, upon what ground the defendant can contend, there is any evidence, that the time lost by Dun-n had constituted any portion of the set off-, claimed by Wheeler in that suit. The only evidence in the case, is the letter of the defendant and the record of the suit in Hertford, It is impossible to read'the former, without seeing at once, that the judgment against Wheeler had been obtained without allowing for the time lost, and in the account filed there is no such charge. We rather agree with the defendant, in his second objection, that for the time lost Dunn was answerable in damages, which, at the time of the trial were unascertained, and could not be given in evidence, as a set off. We think, therefore, the presiding judge was entirely justified in telling the jury, there was no evidence that the charge for the time lost was offered to the jury as a set off on the former trial. We entirely agree *383with his Honor, that the letter of Dunn was evidence to the jury of what was due from him for the time lost by him. He says, “ my account against you for my work was $146, and after deducting what I received, lost time and money paid Carter, which amounts to $41 49, besides the $10 received since, my account against you is $95.” This letter is written after the judgment is obtained against Wheeler, in Hertford County Court, and in reply to one .written by him, complaining of the suit, as the defendant in his answer says. We are inclined to think it complained of more than simply being sued for a just debt, and, if exhibited, would have shown that be was also dissatisfied with the amount recovered. Be this as it may, we consider this letter as containing a sufficiently distinct admission, on the part of Dunn, not only as.to his liability to account with Wheeler, for the time he had lost, but also that it had not been allowed him in the previous suit, No other construction can be placed upon it. It further, sufficiently for the plaintiff’s purposes, ascertains the amount due. What therefore might have been, and, for aught that appears to us, was, at the trial of the suit Dunn against Wheeler, unliquidated damages, was no longer so. After the writing of this letter, Dunn had himself made that sufficiently certain, which was before'uncertain, and indebitatus as-sumpsit could be maintained for the sum due. That letter was evidence to the jury, that the parties had accounted together and ascertained the sum due from the defendant for the time lost, which the plaintiff had not set off or offered to set off in the former action.

The judgment of the court below is affirmed.

Per Curiam., .Judgment affirmed.