Brower v. Nellis
| Decision Date | 14 March 1893 |
| Docket Number | 765 |
| Parties | BROWER ET AL. v. NELLIS ET AL |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Judgment reversed, with instructions to overrule the demurrer to the counterclaim.
P. S Kennedy and S. C. Kennedy, for appellants.
J Wright and J. M. Seller, for appellees.
The appellees sued the appellants on a judgment obtained against the appellants, and one George S. Brower. The judgment was rendered by the Circuit Court of Montgomery county, in the month of February, 1875. The complaint alleges that after the rendition of the judgment the said George S. Brower died, and that his estate is insolvent. Neither his personal representatives nor his heirs are made parties. No demurrer to the complaint was filed. Appellants filed a pleading which their counsel denominate an answer of set-off. In it the appellants allege that in the year of 1874 they and one George S. Brower, named in the complaint, were doing business in partnership, in the city of Crawfordsville, Indiana, as retail dealers in farming implements and farming machinery and that the plaintiffs then and there sold to the defendants and said George S. Brower, as such dealers, a large number of corn cultivators, to be used in the cultivation of growing corn, and that said plaintiffs then and there, as a part of the terms of such sale, warranted that such cultivators were of an improved pattern, were well made, of good and substantial material, and would cultivate young corn in a very superior manner, and better than any other kind of cultivator then in use; that the defendants received said cultivators too late to be used and tested in the year of 1874, and that the same could not be and were not used and tested until the summer of 1875, and after the judgment sued on had been rendered; that the judgment sued on was rendered on an account for said lot of cultivators, and on no other cause of action; that said cultivators were not of an improved pattern, and were not made of good material; that when tested and used by competent persons, they proved to be and were utterly worthless for any purpose whatever when sold to the defendants; that the plaintiffs are now, and have been continuously since the year of 1870, non-residents of the State of Indiana; that defendants have been damaged by the breach of said warranty in the sum of $ 500, which they ask may be set off against any sum that may be found due the plaintiffs.
The appellees demurred to this pleading, assigning as the only cause that it does not state facts sufficient to constitute a defense to plaintiffs' cause of action. The court sustained the demurrer. This is the error complained of in this court.
Counsel for appellants contend that this pleading is a set-off, while counsel for appellees assert that it is an answer in bar of the plaintiffs' right of recovery. It becomes important to determine the character of this pleading. Is it an answer, a counter-claim, or set-off? Some confusion has arisen as to the meaning of the words "answer" and "defense," "counter-claim" and "set-off," as used in our code. This confusion is due, in a measure, to the fact that there is an attempt to blend in one system the chancery and common law procedure. By section 347, R. S. 1881, counterclaim and a set-off are classified as answers and defenses. The code borrowed certain terms from the two systems, common law and chancery. The meaning of these terms in their respective systems will aid in reaching a correct understanding as used in the code.
When a person was sued in a court of law, the object of the action was to obtain the judgment of the court affecting either his rights of person or property. If he attempted to resist or ward off the attack he was called a defendant, and the means he used to ward it off his defense. Originally the word defense, as used in common law courts, meant simply a denial of the truth of the declaration or complaint. 3 Blackstone's Commentaries, 296; Chitty's Pleading, 428. But now it means that which is offered by a defendant as sufficient to defeat the complaint by denying, justifying, or confessing and avoiding the action. The person sued could defend by demurrer or by interposing matter of fact.
If by matter of fact, he was said to plead, and such defense was called a plea. Stephen's Pleading, 82, 83.
At common law there was no such thing as a cross-action.
Mutual claims could not be set off one against the other. Set-off was unknown to the common law. It is a creation of statute. If the plaintiff was indebted to the defendant, he was compelled to bring a separate suit, or resort to a court of equity to have his claim set off. Waterman on Set-Off, section 10.
The defendant might, however, recoup or show that the plaintiff had not sustained damages to the extent claimed, and thus reduce or altogether defeat the plaintiff's recovery, but he could not recover judgment for the excess. Waterman on Set-Off, section 456.
The procedure in equity courts was materially different from the law courts. The forms were borrowed from the ecclesiastical courts. Story's Equity Pleadings, section 850.
The person against whom a bill in equity was exhibited was called the respondent. He might interpose his defense by demurrer, by plea, by answer, or by disclaimer. Mitford & Tyler's Pleadings and Practice in Equity, 202.
And when it became necessary to give full and complete relief to all the parties, the defendant might file a cross-bill, and such cross-bill was generally considered as a defense. Mitford & Tyler's Pleadings and Practice in Equity, 179.
It is in pursuance of the chancery practice that a counterclaim and a set-off are denominated answers and defenses by our statute. The adjudications, however, seem to have lost sight of this distinction, and they are now treated as cross-actions. Wills v. Browning, 96 Ind. 149 (152), and cases cited; Branham v. Johnson, 62 Ind. 259.
It is a matter of little importance what names are given to such pleadings, so long as their character and nature are understood, and the rules governing them defined. The counterclaim and set-off are now considered to be causes of action held by the defendant against the plaintiff, and, when pleaded, are governed by the same rules that govern the complaint. The cross-bill in chancery, and the cross-demands, or set-off, although denominated answers, were, in the chancery practice, governed by the same rules as the bill when exhibited. It is a convenient method to treat a counter-claim and a set-off as cross-actions, and when the meaning of the terms "answer" and "defense," as applied to them by our statute is understood, the confusion is dissipated.
The pleading in this case seeks to recover damages for the breach of a contract warranting the quality, the materials, and the superior manner in which corn cultivators would perform work. It presents something intimately connected and associated with the indebtedness arising in favor of the plaintiffs on account of the sale of the cultivators. Had the breach existed when the first suit was brought on the account, it might have been pleaded as a defense, by way of recoupment. The breach might, also, have been pleaded by way of counterclaim. Love v. Oldham, 22 Ind. 51; Hillenbrand v. Stockman, 123 Ind. 598, 24 N.E. 370.
It would seem from these authorities that when the same matter may be pleaded as an answer by way of recoupment, or by way of counterclaim, that the defendant has the right to elect. If he elect to treat the breach as a counterclaim, his failure to plead it as an answer by way of recoupment shall not bar him of his right to plead it as a counterclaim. It does not appear from the pleading in this case that the breach existed at the time judgment was rendered on the account.
When the plaintiff's claim was in the form of an account, it rested in simple contract. When the account or cause of action merged into a judgment, it became a contract of record. Campbell v. Martin, 87 Ind. 577; Gould v. Hayden, 63 Ind. 443; Davidson v. Nebaker, 21 Ind. 334.
In the process of evolution from the simple to the special, the original cause of action freed itself from many infirmities. As a debt of record, sanctioned by a court of competent jurisdiction, all defenses that could have been entertained, or might have been interposed to defeat the original action are conclusively cut off. A counterclaim is sometimes designated a "cross-complaint," although under our code its proper name is "counter-claim." It is the blending of the cross-bill of the chancery practice and of recoupment at common law.
It is an essential element of this pleading that it shall present matters for adjudication which, in some way, grow out of the subject-matter of the plaintiff's suit. The subject-matter of the complaint, and the subject-matter of the counterclaim must have some legal or equitable connection. Standley v. Northwestern, etc., Life Ins. Co., 95 Ind. 254, and cases there cited.
The right to plead a counterclaim does not depend upon the allegations of the complaint alone, nor does it depend upon the contractual relations of ...
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