Esbensen v. Hover

• Decision Date: 12 June 1893
• Citation: Esbensen v. Hover, 3 Colo. App. 467, 33 P. 1008 (Colo. App. 1893)
• Parties: ESBENSEN v. HOVER et al. [1]
• Court: Colorado Court of Appeals

33 P. 1008

3 Colo.App. 467

ESBENSEN v. HOVER et al. ^[1]

Court of Appeals of Colorado

June 12, 1893

Appeal from district court, Arapahoe county.

Action by W.A. Hover & Co. against H.T. Esbensen. From a judgment for plaintiffs, defendant appeals. Affirmed.

John C Fitnam, for appellant.

R.D Thompson, for appellees.

THOMSON J.

This is an action for goods sold and delivered. The complaint alleges the sale and delivery, and the value and price of the goods and avers that no part of such price has been paid. The answer admits the sale, delivery, and price, but denies each and every other allegation of the complaint. The answer also contains a counterclaim for damages for an excessive levy under a writ of attachment which, it alleges, was issued in the action. A demurrer to the counterclaim was sustained, and judgment on the pleadings given for the plaintiffs, from which the defendant appeals.

There is nothing in the record to show that any affidavit for attachment was ever made, or writ issued, in the case. The only information we have on that subject is derived from the counterclaim. But, assuming that such writ was issued, levy made and damages sustained, as claimed, and by reason of which defendant has a cause of action against the plaintiffs, still, such cause of action cannot be made a counterclaim in this suit. Section 57 of the Code defines a "counterclaim" as a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, or a cause of action upon contract, and existing at the commencement of the suit. This counterclaim did not arise out of the transaction set forth in the complaint, and was not connected with the subject of the action. The transaction was the sale and delivery of the goods, and the price of the goods was the subject of the action. With such sale and delivery, or with such price, the counterclaim has nothing to do. It arises out of an alleged tort committed in the course of the prosecution by the plaintiffs of their remedy for the enforcement of the claim. It had no existence when the alleged writ was issued, and, if no writ had been issued in the case, it never would have had an existence. It was a wrong done to the defendant, not necessary to the enforcement of plaintiffs' remedy, and is on the same footing with any other wrong which the plaintiffs might have committed upon the defendant. The court very properly sustained the demurrer.

The question of the effect of a general denial upon the allegation of failure to pay for the goods is one of somewhat more difficulty, arising out of an apparent want of harmony among the authorities. In California it is held that a general denial puts in issue an allegation of nonpayment in the complaint. But in that state the averment of nonpayment seems to be essential, and without it there is no cause of action stated, so that a denial of that is a denial of a material allegation. Frisch v. Caler, 21 Cal. 71; Fairchild v. Amsbaugh, 22 Cal. 572; Pom.Rem. § 700. In Quin v. Lloyd 41 N.Y. 349, the plaintiff sued for a balance due, and the court held that the denial involved an issue upon all the facts stated and denied, and admitted proof of the different payments made, so as to determine what in fact was the balance of the debt. The plaintiff having admitted payments, the denial of the balance due authorized an inquiry as to the amounts paid. In Marley v. Smith, 4 Kan. 183, the plaintiff alleged that the defendant was indebted to him in the sum of $75 on an account, a copy of which was annexed to the complaint; and, under a general denial, the court held that proof of payment might be introduced, because the petition did not state the facts constituting the defendant's liability, but merely the...