Downs v. Finnegan
| Decision Date | 05 July 1894 |
| Docket Number | 8757 |
| Citation | 59 N.W. 981,58 Minn. 112 |
| Parties | Henry Downs v. Andrew J. Finnegan |
| Court | Minnesota Supreme Court |
Argued May 11, 1894
Appeal by plaintiff, Henry Downs, from an order of the District Court of Hennepin County, Charles M. Pond, J., made November 29, 1893, setting aside a verdict in his favor for $ 2,982.
The defendant, Andrew J. Finnegan, employed plaintiff to build the foundation of stone masonry for a house on Clinton Avenue in Minneapolis and to furnish the materials, and agreed to pay him therefor $ 2.50 per perch for rubble stone, and $ 3.50 per perch for footing stone measured in the wall when completed. The work was completed February 4, 1889. Plaintiff received $ 200 and brought this action to recover the balance, $ 2,248.10 with interest from that date. Defendant answered that he owned government lot (2) in Section twenty five (25) T. 29, R. 24, in Hennepin County, and that between June 1, 1886, and January 1, 1893, plaintiff bought of defendant, quarried and removed from this land 44,218 perch of stone worth thirty cents per perch, and that no part of the price had been paid and he demanded judgment against plaintiff for $ 13,265.40 less any sum found due plaintiff on the cause of action stated in the complaint. The plaintiff replied, denying all the allegations of this answer. At the trial October 2, 1893, plaintiff proved his demand and rested. Defendant then proved his patent title to lot two (2) mentioned in his answer and that plaintiff had quarried stone on it, and the amount and value of the stone taken. Defendant was a witness on his own behalf and on cross examination testified that plaintiff also claimed to own lot two (2) and to have the right to quarry stone there, and had been taking out stone under such claim during the time stated in the answer. The court on motion of plaintiff then dismissed the counterclaim. Defendant excepted. The jury returned a verdict for the plaintiff and assessed his damages at $ 2,982. The defendant made and settled a bill of exceptions and moved for a new trial. The court granted it saying, the counterclaim is badly pleaded. The defendant's answer sets out a sale and delivery of stone when he knew his cause of action, if he had any, to be in tort. He should have alleged the facts as the statute provides. But plaintiff became aware of the defect in the pleading and the variance in proof, and made no objection on those grounds or on the ground that the answer did not show a proper counterclaim until defendant rested his case. Under the testimony the jury might have found that plaintiff had sold and disposed of the stone which he took out of the quarry. If so the case would be within Brady v Brennan, 25 Minn. 210. See also Walker v Johnson, 28 Minn. 147; Warner v. Foote, 40 Minn. 176.
Order affirmed.
Sumner Ladd, for appellant.
The defendant pleaded his counterclaim as though it were an action arising on contract, and therefore plaintiff could not demur. It was equally impossible for plaintiff to make this objection on the trial until the close of defendant's evidence, since he could not foresee that defendant would not attempt to prove the contract of purchase which he had alleged. We are unable to see how the trial court arrived at the conclusion that plaintiff was aware at the outset of defendant's evidence of the defective pleading and of the variance in proof. Plaintiff never consented to litigate the merits of the counterclaim and introduced no evidence in rebuttal of defendant's testimony. A cause of action sounding in tort even though for the conversion of ordinary personal property cannot, under the decisions of this court be set up as a counterclaim to a cause of action arising on contract. Folsom v. Carli, 6 Minn. 420; Steinhart v. Pitcher, 20 Minn. 102; Brady v Brennan, 25 Minn. 210; Warner v. Foote, 40 Minn. 176.
The defendant's evidence tends to show that he acquired paper title to the stone quarry in question through a quitclaim deed from William A. Cheever and wife, dated November 24, 1882. It also shows that the plaintiff had been in the adverse possession of this quarry from 1886 or 1887 down to the time of the trial under a claim of title; that this adverse possession was open, visible and notorious. That during all these years the plaintiff had been working it, taking out stone. It nowhere appears that the plaintiff evermade an unlawful entry into this land or that he unlawfully withholds the possession of it, and it nowhere appears that defendant had title to or right of possession of the land, either at the time of the commencement of the action or at any time while it was in the possession of the plaintiff. It is said that a party injured may waive the tort and maintain assumpsit. But the defendant has the right to reply that there has been no tort, there is nothing to waive; the land is mine, not yours. And whether it belongs to one or the other cannot be tried in an action of assumpsit. The principle is that title to land cannot be tried ex directo in a transitory action. An action in any of these forms relating to property severed from the freehold cannot be maintained when the plaintiff can make title to the chattel only by making title to the land from which it is severed. Powell v. Smith, 2 Watts, 126, Washburn v. Cutter, 17 Minn. 361; Baker v. Howell, 6 S. & R. 481.
Savage & Purdy, for respondent.
The appellant had waived his objection to the counterclaim as such by making no objection until the close of defendant's testimony. This is the reason on which the court has based its order for a new trial, and it is sufficient. Brady v. Brennan, 25 Minn. 210; Warner v. Foote, 40 Minn. 176; Lace v. Fixen, 39 Minn. 46.
When the owner of property which has been tortiously converted, waives the tort and elects to sue upon an implied agreement to pay for the property taken, the cause of action is upon contract, and comes within the terms of the statute concerning counterclaims. 1878 G. S. ch. 66, § 97, subd. 2; Pomeroy, Remedies, § 568; Isaacs v. Hermann, 49 Miss. 449; Starr Cash Car Co. v. Reinhart, 2 Misc. (N. Y.) 116; Walker v. Duncan, 68 Wis. 624; Gordon v. Bruner, 49 Mo. 570; Norden v. Jones, 33 Wis. 600; Andrews v. Artisans' Bank, 26 N.Y. 298.
The implied promise is available in the case of personal property severed from land. Rowell v. Rees, 7 A. & E. 426; Jones v. Hoar, 5 Pick. 285; Halleck v. Mixer, 16 Cal. 574; Budd v. Hiler, 27 N. J. Law, 43.
The learned judge in the trial court criticised the form in which the counterclaim was pleaded, although he considered all objection on that score as waived by the plaintiff. We believe that in pleading an implied contract of sale it was proper to plead its legal effect rather than the evidentiary facts. Curtiss v. Livingston, 36 Minn. 380; Walker v. Duncan, 68 Wis. 624; Barnes v. McMullins, 78 Mo. 260.
Collins, J. Buck, J., absent, took no part.
The complaint herein was in assumpsit to recover the value of materials furnished and labor and services rendered and performed by plaintiff for defendant. The answer, after putting in issue the value of the materials, labor, and services, set forth, by way of counterclaim, that defendant was the owner of certain described real property; that, between specified dates, plaintiff bought and received from him, and excavated, quarried, and removed from said premises, a specified quantity of stone, of an alleged value largely in excess of the amount demanded in the complaint. The reply put in issue the averments as to the counterclaim, and thus denied, among other things, that defendant was the owner of the real estate described in his answer. At the close of defendant's proofs in respect to his counterclaim, the jury were instructed to disregard it, and to return a verdict for plaintiff as demanded in the complaint, which was done. The cause comes before us on a bill of exceptions, an appeal having been taken from an order granting defendant's motion for a new trial.
It appeared from the testimony produced in support of the counterclaim that defendant had the paper title to the land described in his answer; that plaintiff had entered upon it quarried and removed a large quantity of stone, selling a part and using the balance himself. The defendant made no effort to show an express contract under which plaintiff went upon the land, or quarried or removed the stone. He sought to maintain his counterclaim by waiving the tort, and by relying upon an implied contract, and no objection to this seems to have been made...
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