53 Mo. 199 (Mo. 1873), McAdow v. Ross

Citation:53 Mo. 199
Opinion Judge:VORIES, Judge.
Party Name:JAMES F. MCADOW, Respondent, v. D. M. Ross, et al., Appellants.
Attorney:Wm. Douglas, for Appellants. A. A. Tomlinson, for Respondent.
Court:Supreme Court of Missouri
 
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Page 199

53 Mo. 199 (Mo. 1873)

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.)

OPINION

VORIES, Judge.

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...

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