Empire Transp. Co. v. Boggiano

• Court: United States State Supreme Court of Missouri
• Writing for the Court: ADAMS
• Citation: 52 Mo. 294
• Decision Date: 31 March 1873
• Parties: EMPIRE TRANSPORTATION CO., Appellant v. ANGELO BOGGIANO et al., Respondent.

52 Mo. 294

EMPIRE TRANSPORTATION CO., Appellant
v.
ANGELO BOGGIANO et al., Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

C. C. Whittelsey, for Appellant.

The counter-claim was for unliquidated damages, and arose out of a cause of action, different from that set out in the petition. The provisions relating to counter-claim, must be construed in connection with the statute of set-off still in force. (W. S., 1273; Id. 1016, § 13; Berdell vs. Johnson, 18 Barb., 559; Vassear vs. Livingston, 3 Kern., 256; Xenia Bank vs. Lee, 7 Abb., Pr. (n. Y.,) 372; Johnson vs. Jones, 16 Mo., 494; State to use vs. Modrell, 15 Mo., 421; Mahon vs. Ross, 18 Mo., 121; Pratt vs. Menken, 18 Mo., 158; Brake vs. Corning, 19 Mo., 125.)

In an action for goods sold, defendant cannot counter-claim damages for fraud in the sale of other goods. (Berdell vs.

[52 Mo. 295]

Johnson, 18 Barb. 559; Johnson vs. Strader, 3 Mo., 359, 366.)

Cline, Jamison & Day, for Respondents.

The defendant's counter-claim is based upon a breach of contract and is not an action of tort.

In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action may be the subject of a counter-claim. (W. S., 1016, § 13.) The cases in 19 Mo., 125; 15 Mo., 424, and 16 Mo., 494, cited by appellant all relate to set-off and were decided before the adoption of the present provisions in reference to counter-claims.

The counsel for appellant and respondent filed elaborate briefs, but as the other points were not touched upon in the decision they are necessarily ommitted here.

ADAMS, Judge, delivered the opinion of the court.

This was an action for freight and charges, amounting to three hundred and fifty three 10-100 dollars, on goods transported by the plaintiff as a common carrier from the City of New York to the City of St. Louis, and delivered to the defendants.

The defendants answered, and by way of counter-claim, set up gross and willful negligence of the plaintiff in the transportation of fruit, that had been delivered to plaintiff, and which plaintiff had agreed...