McAdow v. Ross

• Citation: 53 Mo. 199
• Parties: JAMES F. MCADOW, Respondent, v. D. M. Ross, et al., Appellants.
• Decision Date: 31 July 1873
• Court: United States State Supreme Court of Missouri

53 Mo. 199

JAMES F. MCADOW, Respondent,

v.D. M. Ross, et al., Appellants.

Supreme Court of Missouri.

July Term, 1873.

Appeal from the Jackson Circuit Court.

Wm. Douglas, for Appellants.

I. The counter-claim here pleaded, arose “out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim,” and was “connected with the subject of the action.” (W. S., 1016, § 13.)

A. A. Tomlinson, for Respondent.

The two defenses are inconsistent. The first is a denial of every allegation in the petition necessary to constitute a cause of action. The second is a confession and avoidance. (Adams vs. Trigg, 37 Mo., 141; Fugate vs. Pierce, 49 Mo., 441.)

The counter-claim was properly stricken out. 1st. There was no mutuality of indebtedness between plaintiff and defendant Smallwood.

2d. The damages were unliquidated, and could not be pleaded as set-off. (W. S., 1273; Johnson vs. Jones, 16 Mo., 494; Mahan vs. Ross, 18 Mo., 121; Pratt vs. Menkins, Ibid. 158; Brake vs. Corning, 19 Mo., 125.)VORIES, Judge, delivered the opinion of the court.

This action was brought to enforce a mechanic's lien.

The petition charges, that the defendant Ross is indebted to plaintiff in the sum of $79.32, for materials furnished by plaintiff to said Ross, the particulars of which are filed: that said materials were furnished for a house erected under a contract with said Ross, (describing the house and lot on which it is situate); that said Ross was the contractor of defendant Smallwood for the erection of said house, for which the materials were furnished, and that said Smallwood was the owner and proprietor of said house and lot; that the indebtedness accrued on the 18th day of November, 1867; that on the 4th day of January, 1868, plaintiff gave notice to said Smallwood, that he held this claim against said property, setting forth the amount and from whom due; that on the 17th day of March, 1868, plaintiff filed with the clerk of the Circuit Court of Jackson County, a just and true account of the demands claimed after all just credits had been given, and a true description of the property on which the lien was intended to apply, with the names of the contractor and owner of the property, which was verified by the oath of plaintiff; a certified copy of all which was filed with the petition.

Judgment is then prayed against said defendant, Ross, for the amount of the account and interest, and that plaintiff's lien be enforced against the property named, &c.

The defendant Smallwood appeared and filed his demurrer to the petition, which being overruled, he by leave of the court filed an answer.

In his answer he says, that he has no knowledge, or information sufficient to form a belief, as to whether the plaintiff furnished the timber sued for or not. He denies, that plaintiff ever, at any time, gave him notice of his claim against Ross, as stated in the petition, and denies that plaintiff's claim was filed in the clerk's office as directed by the statute.

The defendant then, for a further answer and counter-claim, states, “that on the 29th day of Oct. 1867, he and said D. M. Ross entered into a contract in writing, which is herewith filed, whereby the said Ross promised and agreed to build for this defendant a house of the dimensions in said contract specified, and which was to be finished by the 25th day of Nov. 1867, in a good and workmanlike manner, and that plaintiff guaranteed in writing, that said Ross should perform and complete said contract according to its said terms, and which is the same house mentioned in the petition, and which guaranty is herewith filed; that this defendant accepted said guaranty, and plaintiff had due notice of said acceptance; that said Ross did not keep nor perform his said contract, but made breach thereof, in that said house was not completed on said 25th day of November, 1867, nor until one month afterwards, whereby defendant was damaged in the sum of fifty dollars, and that the plastering of said house was not put on in a good and workmanlike manner, nor was it done at the time it ought to have been done, but on the contrary, said plastering was put on in so unskillful and unworkmanlike manner, and at a time when it froze, so that all of it fell off, and defendant was compelled to and did employ other persons to put on new plastering, at a great cost, to-wit: at the cost and expense of one hundred and fifty dollars, by reason whereof, defendant says he is injured, and has sustained damage to the amount of two hundred dollars, for which he asks judgment.”

The second defense or counter-claim set up by the answer and above copied, was on the motion of the plaintiff stricken out. The grounds of the motion to strike out this counter-claim were, 1st. That it constituted no legal defense to the action, and was inconsistent with the previous defense set up in the previous part of the answer. 2nd. The liability of the guarantor is contingent, and cannot be pleaded as a set-off. 3rd. There is no mutuality of indebtedness between plaintiff and defendant Smallwood.

The court sustained this motion, and struck out from the record said part of said answer, and the defendant excepted.

A trial was afterwards had and judgment rendered against the defendant Ross, for the debt named in the petition, and subjecting defendant Smallwood's house, named in the petition, to sale for the payment of the judgment.

The defendant, Smallwood, then filed his motion for a new trial for the following reasons: 1st. The court erred in striking out part of defendant's answer, and because the court erred in refusing to declare the law to be as asked for by the defendant.

This motion being overruled, the said defendant excepted, and has appealed to this court.

The only matter complained of by the appellant in this court is, that the court below erred in striking out the counter-claim pleaded by defendant Smallwood, which constituted the second ground of defense on the part of said defendant. It is insisted by the respondent, that this second defense or counter-claim, set up by the defendant, is inconsistent with the first part of the answer, and therefore properly stricken out. “The defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable or both.” (Wag. Stat., 1010.) It is further provided, that “different consistent defenses may be separately stated in the same answer.” The question now is, is this counter-claim set up by the defendant inconsistent with the former averments in the answer within the meaning of this statute? I think it is not. The answer first states, that the defendant has no knowledge, or information sufficient to form a belief, as to whether the material mentioned in the petition was furnished by plaintiff to the said D. M. Ross; and then the answer denied, that plaintiff at any time gave notice to defendant, that he held said claim against said property. Can these allegations, and the allegations made in that part of the answer stricken out, both be true? If they can, they are not inconsistent within the meaning of the statute; that they may both be true, does not admit of an argument; there is nothing inconsistent in the fact, that plaintiff did not give the defendant notice of his claim, or that he never furnished the lumber charged for, and the fact that plaintiff guaranteed, that the work to be done in building the house should be well done and done in the time specified; both of these facts may be literally true. This question has been fully discussed and decided in the case of Nelson vs. Brodhack, 44 Mo., 596. The learned judge, delivering the opinion in that case, says, that the technical rule, which supposed that such special defenses confessed and avoided, when in fact they did not confess at all, should not be adopted in such cases. This case is not like the facts of the case in Fugate vs. Pierce, 49 Mo., 441. In that case the two positions maintained by the defendant were perfectly irreconcilable, and could not both stand together, and were clearly...