Broderick v. Andrews

• Decision Date: 07 December 1908
• Citation: 115 S.W. 519,135 Mo. App. 57
• Parties: BRODERICK v. ANDREWS.
• Court: Missouri Court of Appeals

115 S.W. 519

135 Mo. App. 57

BRODERICK v. ANDREWS.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

Rehearing Denied February 1, 1909.

1. JUSTICES OF THE PEACE (§ 90)—ACTIONS— PLEADING—FORM.

No formal pleadings being required in justices' courts, the form of the pleading in a suit originating in such court cannot be objected to on appeal to the circuit court.

2. SALES (§ 347)—ACTIONS FOR PRICE—DEFENSES —WANT OF CONSIDERATION.

Under Rev. St. 1899, § 645 (Ann. St. 1906, p. 664), permitting the plea of want of consideration in whole or in part where a written contract is the foundation of the action, the plea of want of consideration is unqualifiedly allowed in suits such as an action on a note for a jack where defendant pleaded breach of warranty, and want of consideration, but admitted that the jack was worth something.

3. PLEADING (§ 93) — INCONSISTENT DEFENSES.

In an action on notes given for the purchase price of a jack, where defendant pleaded breach of warranty, but admitted that it was worth something, and also pleaded want of consideration, even if the pleas were inconsistent, defendant was entitled to the benefit of one of them.

4. PLEADING (§ 352)—INCONSISTENT DEFENSES —REMEDY—MOTION TO STRIKE.

If defenses are inconsistent, plaintiff should move to strike them.

5. JUSTICES OF THE PEACE (§ 44)—JURISDICTION —AMOUNT.

Since under Rev. St. 1899, § 645 (Ann. St. 1906, p. 664), want of consideration may be proved in any court as a defense in actions founded on a written instrument for the payment of money, defendant's plea of failure of consideration in an action on a $250 note, in addition to his counterclaim for $250, would not prevent a justice's court, the jurisdiction of which is limited to $250, from having jurisdiction; defendant's plea of want of consideration not being an assertion of a claim for that amount.

6. APPEAL AND ERROR (§ 1170)—HARMLESS ERROR—AFFECTING ONE NOT ENTITLED TO SUCCEED.

A judgment correct on the merits will be affirmed, notwithstanding minor errors committed at trial.

Appeal from Circuit Court, Johnson County; Nick M. Bradley, Judge.

Action by John M. Broderick against W. A. Andrews. From a judgment for defendant, plaintiff appealed. Affirmed.

D. T. Boisseau, W. L. Chaney, and Jas. A. Kemper, for appellant. J. W. Suddath & Son, for respondent.

BROADDUS, P. J.

This suit was commenced before a justice of the peace, where a trial was had, and an appeal taken to the circuit court, where on trial anew the judgment was for defendant, from which plaintiff appealed. The suit is on a note for $250 given for the balance of the purchase price of a jack which plaintiff sold to defendant for the sum of $650; the sum of $400 having been paid at the time of the purchase. In the circuit court defendant amended his answer, in which he admitted the purchase price of the animal for the consideration of $650 and a statement of the payment of $400 and the execution of the note for the balance, and alleging that prior to the purchase of the jack by him from plaintiff, and as an inducement to him to purchase the same, plaintiff represented and stated to him that he would warrant said jack to be a good, sure foal getter, that he would and did warrant that said jack would perform properly and would get at least 60 per cent. of mares with foal, and further alleging that he relied upon said representations, and bought the jack at the price named. Defendant further alleged that the jack was not a sure foal getter, that he did not prove as warranted and did not get 60 per cent. of the mares served by him with foal, and was not at the time of purchase worth more than $150, that by reason of said breach of warranty the consideration of the note had wholly failed, and that plaintiff was not entitled to recover thereon. Defendant further set up that, by reason of said breach of warranty, he was put to great trouble and expense, and was thereby damaged in the sum of $250, for which he asked judgment. The defendant introduced evidence tending to sustain his defense, and plaintiff's evidence tended to rebut that of defendant. The verdict of the jury was as follows: "We, the jury, find for the defendant." At the close of all the evidence, the plaintiff offered a demurrer to defendant's case made upon his plea of failure of consideration, which the court overruled.

This action of the court is assigned as error, first, because "defendant's answer confirms the sale and rests his defense upon a breach of an express warranty, and is presented and pleaded in one count, and the relief sought is in one prayer and from one wrong." The form of pleading cannot be called in question in ...