Finney v. Raudabaugh

• Decision Date: 27 June 1914
• Citation: 168 S.W. 314,182 Mo.App. 246
• Parties: BENJAMIN P. FINNEY, Respondent, v. SAMUEL B. RAUDABAUGH, Appellant
• Court: Missouri Court of Appeals

168 S.W. 314

182 Mo.App. 246

BENJAMIN P. FINNEY, Respondent, v. SAMUEL B. RAUDABAUGH, Appellant

Court of Appeals of Missouri, Springfield

June 27, 1914

Appeal from Butler Circuit Court.--Hon. J. P. Foard, Judge.

AFFIRMED.

Judgment affirmed.

Whaley & Ing and Puckett & Tyson for appellant.

(1) Plaintiff, by waiving the contract and suing in tort, could not deprive the defendant of any right he would have had if the suit had been brought on the contract. If the suit had been brought on the contract, defendant could have filed, as a counterclaim, any demand relating to the contract upon which he could have instituted an independent suit at the time. McCuin v. Frazier, 38 Mo.App. 63. (2) A counterclaim may be interpleaded as a defense whether plaintiff's action be for tort or upon contract, if it arises out of the same transaction or be connected with the subject of the action. Bowman & Co. v. Lickey, 86 Mo.App. 47; Transportation Co. v. Boggiano et al., 52 Mo. 294; Ruth v. McPherson, 150 Mo.App. 704; Miller v. Crigler, 83 Mo.App. 395; Ashby v Shaw, 82 Mo. 76; McAdow v. Ross et al., 53 Mo 199. (3) All independent express contracts, whether liquidated or unliquidated are the subjects of counterclaim and in all that class of cases in which a tort has been suffered and the law permits the sufferer to waive the tort and sue in assumpsit, and he prefers the latter then a counterclaim may be made arising under the same contract. And where the actor elects to sue in tort, springing out of a contract pleading as inducement, the defendant should be allowed a counterclaim growing out of plaintiff's breach of that contract. Kamerick v. Castleman, 23 Mo.App. 481; Barnes v. McMullins, 78 Mo. 260.

E. R. Lentz for respondent.

(1) The clause of the defendant's answer which was stricken out by the court was properly stricken out, for the reason that the clause which is alleged to be a counterclaim, does not state facts sufficient to constitute cause of action. The code contemplates that a cause of action should be stated in a plain concise way, consisting of facts constituting it. Rev. Stat. 1909, Sec. 1806-7; Mark v. Cooperage Co., 204 Mo. 261. (2) The motion to strike out the counterclaim interposed in the fourth paragraph of defendant's answer, was properly sustained because this clause states no facts which would entitle defendant to recover. It was properly stricken out for the further reason, that plaintiff's action was in tort while the counterclaim is alleged to be on contract and there is no showing that it arose out of the same transaction as plaintiff's cause of action. Rev. Stat. 1909, Sec. 1807; Ruth v. McPherson, 150 Mo.App. 704, 131 S.W. 474; Bowman v. Lickey, 86 Mo.App. 58; Miller v. Crigler, 83 Mo.App. 401; State ex rel. v. Guaranty Co., 135 Mo.App. 165. (3) No counterclaim for unliquidated damages against plaintiff's action in tort unless it grew out of the same transaction as that upon which plaintiff's cause of action is founded. The counterclaim pleaded makes no such showings and was properly stricken out. See authorities under last point.

STURGIS, J. Robertson, P. J., concurs. Farrington, J., concurs.

OPINION

STURGIS, J.

Plaintiff alleged in his petition that he and defendant were joint owners of some hay, each owning one-half, and that defendant unlawfully and wrongfully converted same to his own use to plaintiff's damage, etc. Defendant answered, denying these allegations and by way of counterclaim states that plaintiff is indebted to defendant for certain items of money loaned and for seed converted to his own use, and this item: "To damages due defendant by reason of plaintiff's failure to properly tend and cultivate the land of defendant which plaintiff had rented and agreed to cultivate; in the sum of $ 204.65." The plaintiff filed a motion to strike out this item, assigning the reason that same "is for unliquidated damages, and is not the subject for counterclaim or set-off herein." The court sustained this motion and defendant excepted. The answer being freed of this item of the counterclaim, the case was tried without error and to the satisfaction of both sides so far as this record indicates, and resulted in a verdict for plaintiff for $ 52.13 on his cause of action and for defendant on his counterclaim for $ 12.25. The court rendered judgment for plaintiff for the difference.

The defendant's motion for new trial complains of only one ground of error, to-wit, the court's action in striking out the above-mentioned item of his counterclaim. This is the sole point for our consideration.

Each party relies on our statute with reference to counterclaims which restricts same to those "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 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." [Section 1807, Revised Statutes 1909.] It is evident that plaintiff's action is one sounding in tort, to-wit, for the conversion of personal property; while defendant's counterclaim is based on a contract, to-wit, an agreement to cultivate land. Under the first subdivision of the statute it is no objection to a counterclaim that plaintiff's cause of action is for tort and the counterclaim on contract, or vice versa, provided both arise from the same transaction or be connected with the same subject-matter of the action. If the action and cross action arise from the same transaction, it does not...