Doysher v. Adams

• Decision Date: 24 January 1895
• Citation: 29 S.W. 348
• Parties: DOYSHER v. ADAMS.
• Court: Kentucky Court of Appeals

29 S.W. 348

DOYSHER v. ADAMS.

Court of Appeals of Kentucky.

January 24, 1895

Appeal from circuit court, Marion county.

"Not to be officially reported."

Action by Frank Doysher against Richard Adams. Defendant, in answer pleaded as a set-off a claim for unliquidated damages. From an order overruling his demurrer to the answer, and judgment allowing the set-off, plaintiff appeals. Reversed.

J. P Thompson, for appellant.

H. W Reves, for appellee.

PAYNTER J.

This action was brought to recover on a note dated February 19 1891, which was executed by appellee, Richard Adams, payable to the order of the appellant, Frank Doysher. The execution of the note was admitted. Adams filed a pleading which he called "answer, set-off, and counter claim." He alleged that on the 20th of December, 1890, he entered into a written contract with the appellant, Frank Doysher, Austin Doysher, and Jacob Klamer, by which he rented his farm to them for the ensuing year; that he let them have the use of certain cows and garden; that they were to milk the cows, make butter, sell milk and butter and the vegetables, and at the end of each month they were to settle with him, and give him one-half of the proceeds. He alleges other matters which they had agreed to do by the terms of the contract. He alleges that they had violated their contract, specifying wherein they had done so, and claimed damages in the sum of $305, and asked that it be set off against the note. This claim is for unliquidated damages. He neither alleges the insolvency nor nonresidence of the parties to the contract upon which his alleged set-off arises. Unless this is done, unliquidated damages cannot be pleaded as a set-off although it arises on a contract. Taylor v. Stowell, 4 Metc. (Ky.) 175; Shropshire v. Conrad, 2 Metc. (Ky.) 143; Forbes v. Cooper, 88 Ky. 285, 11 S.W. 24. Appellant filed a demurrer to the answer, which the court overruled. The demurrer should have been sustained. For this reason a new trial should be granted, and the demurrer to the answer sustained.

Although the error of the court in overruling the demurrer sends the case back, entitling the appellant to a new trial, yet, in view of the fact that there were two trials, and that appellee may amend, and allege such facts as will authorize the question of damage to be tried in this case, the court will consider the question as to one of the instructions which was given at the request of appellee. The court erred in giving the jury instruction D, which is as follows "If the jury believe from a preponderance of the evidence that plaintiff, Doysher, or his cotenants, failed to give reasonable care to the cultivation of the garden, or to the cows, or to the marketing of milk, butter, and vegetables, they should find for defendant on the set-off one-half of what plaintiff and his cotenants could by reasonable care and work have received from the garden and cows, after deducting the amounts paid Adams on that account." The court based this...