Barnard v. Weaver

• Decision Date: 10 August 1920
• Docket Number: No. 2472.,2472.
• Citation: 224 S.W. 152
• Parties: BARNARD v. WEAVER et al.
• Court: Missouri Court of Appeals

224 S.W. 152

BARNARD v. WEAVER et al.

No. 2472.

Springfield Court of Appeals. Missouri.

August 10, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by W. A. Barnard against Jeff Weaver and another, who counterclaimed. From a judgment for defendants on their counterclaim, plaintiff appeals. Affirmed.

Ward & Reeves, of Caruthersville, for appellant.

C. G. Shepard, of Caruthersville, and H. E. Doerner, of Steele, for respondents.

STURGIS, P. J.

The plaintiff sued the defendants for rent of 60 acres of land in Pemiscot county, said land having been rented for a share of the crop grown thereon. The defendants admitted that they owed plaintiff the value of his share of the crop, and tendered judgment for an amount somewhat smaller than claimed by plaintiff. This phase of the case was settled by the jury finding for plaintiff the amount which defendants conceded to be due. The controversy presented by this appeal relates to the counterclaim filed by defendants. By this counterclaim defendants asked a judgment for damages by reason of plaintiff having damaged and partially destroyed defendants' crop grown on the rented land by permitting his (plaintiff's) stock to trespass thereon. The jury found for defendants on this counterclaim for a larger amount than the rent due plaintiff, and hence the court entered judgment against plaintiff for the excess. From this judgment the plaintiff appeals.

The chief insistence of plaintiff is that this counterclaim should have been stricken out or a verdict thereon directed for plaintiff. The evidence shows that plaintiff was in possession, and cultivated the land owned by him adjoining and within the same general inclosure as that rented to the defendants. The partition fence separating the land occupied by plaintiff and that rented to and cultivated by defendant was in bad repair, and furnished no protection to defendants' crops against stock on plaintiff's land. Plaintiff's stock passed from this land through and over this defective partition fence onto the land rented to defendants, and there damaged and destroyed defendants' crops growing thereon.

Since the land cultivated by defendants was a part of the land owned by plaintiff, was within the same general inclosure, and was separated from the land occupied by plaintiff by an inside partition fence, the rule of law that, in the absence of a special law to the contrary, the owners and occupiers of land are required to fence against stock running at large does not apply, and the owners of Stock are required to restrain same from trespassing and doing damage to the adjoining land. The plaintiff therefore is clearly liable for allowing his stock to trespass on and damage defendants' crops. O'Riley v. Diss, 41 Mo. App. 184; Jackson v. Fulton, 87 Mo. App. 228; Jones v. Habberman, 94 Mo. App. 1, 67 S. W. 716; Walker v. Robertson, 107 Mo. App. 571, 81 S. W. 1183.

The plaintiff recognizes this rule of law, and concedes that defendants could maintain an independent action against plaintiff for damages to defendants' crop by reason of the plaintiff permitting his cattle and hogs to trespass on defendants' crops through the defective partition fence. The insistence of plaintiff is that defendants' counterclaim is an action ex delicto, and, since plaintiff's action is on contract, the counterclaim is not proper. Under our Code (section 1807), the defendant may file a counterclaim in a suit based on contract, provided such counterclaim arises "out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action." Where the counterclaim sounds in tort and is a matter wholly independent of the contract sued on, or has no legal connection therewith, the defendant must seek redress in an independent suit. Landers v. Schneider, 180 Mo. App. 49, 165 S. W. 872; Bank of Houston v. Kirkman, 156 Mo. App. 309, 137 S. W. 38. The statute mentioned, however, is remedial, and should and has received a liberal construction. The language of the statute is very broad, and the purpose is to prevent a multiplicity of suits when the defendant's cause of action arises out of the same subject-matter, the transaction, which plaintiff's petition calls in question. If the investigation of the one naturally and logically leads to the other—if there is but one transaction and the investigation of the whole of it leads to an adjustment of the defendant's rights as well as plaintiff's, then the statute allows a complete adjustment of the whole matter in one suit. The word "transaction," says the court in Ritchie v. Haywood, 71 Mo. 560, 562, "must be held to include, therefore, all the facts and circumstances out of which the injury complained of by him arose, and if these facts and circumstances also furnished to de...