Eddington v. Cockrell

• Decision Date: 17 July 1926
• Docket Number: No. 4011.,4011.
• Citation: 286 S.W. 405
• Parties: EDDINGTON v. COCKRELL.
• Court: Missouri Court of Appeals

286 S.W. 405

EDDINGTON v. COCKRELL.

No. 4011.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by C. E. Eddington against Mrs. B. T. Cockrell. Judgment for plaintiff in insufficient amount, and he appeals. Reversed and remanded, with directions.

Corbett & Stiles, of Caruthersville, for appellant.

Shepard & Hawkins, of Caruthersville, for respondent.

BRADLEY, J.

Plaintiff sued in quantum meruit to recover for clearing 13% acres of defendant's land. Said clearing is alleged to be of the reasonable value of $15 per acre. Defendant filed a counterclaim whereby $300 in damages was sought for plaintiff's alleged breach of contract whereby he agreed to cultivate 25 acres of defendant's land and pay as rental therefor one-fourth of the cotton and one-third of the corn grown on the land. The jury found for plaintiff in the sum of $206.25, and for defendant on her counterclaim in the sum of $190, and for plaintiff on the whole case in the sum of $16.25. Plaintiff filed motion for a new trial, and, his motion being overruled, he appealed.

This cause was filed June 9, 1921, and it is stated that it has been tried three times in the circuit court, and has had "a rather tempestuous voyage on the sea of legal error."

Plaintiff contends that the counterclaim filed will not lie and that the instructions for defendant are erroneous. Also it is contended that the court should have given plaintiff's request for a directed verdict on his petition.

We do not deem it necessary to consider any of the assignments, except the one based on the counterclaim.

Defendant, in support of her counterclaim, introduced a written contract dated January 27, 1921, whereby defendant leased to plaintiff 25 acres of land and defendant agreed to cultivate 15 acres of this land in cotton and 10 acres in corn and was to pay as rent one-fourth of the cotton and one-third of the corn. Plaintiff did not cultivate any of the land. He, in effect, testified that he was not able to finance a crop without pay for the clearing, and since the money due him for the clearing was not paid he was not able to cultivate the land. The written lease, however, was unconditional, and the question is, Will the counterclaim lie?

Our counterclaim statute is section 1233, R. S. 1919, and reads as follows:

"The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising 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; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the cause of action which they are intended to answer."

Plaintiff concedes that defendant's alleged counterclaim arises in contract, but contends that the cause of action pleaded in the counterclaim did not exist on June 9th when plaintiff commenced his action. Where a party, bound by an executory contract, repudiates his obligation before the time for performance, the promisee, according to the great weight of authority, may treat the contract as ended, so far as concerns further performance, and sue at once for damages for such anticipatory breach. 13 C. J. 651; Gabriel v. Brick Co., 57 Mo. App. 520, loc. cit....