Finney v. Raudabaugh

• Decision Date: 16 June 1914
• Docket Number: No. 1075.,1075.
• Parties: FINNEY v. RAUDABAUGH.
• Court: Missouri Court of Appeals

168 S.W. 314

182 Mo. A. 246

FINNEY v. RAUDABAUGH.

No. 1075.

Springfield Court of Appeals. Missouri.

June 16, 1914.

1. SET-OFF AND COUNTERCLAIM (§ 29)— SAME TRANSACTION.

Under Rev. St. 1909, § 1807, allowing counterclaim of a cause of action arising and the transaction set forth in the petition as the foundation of plaintiff's claim, or connected with the subject of the action, it is immaterial that one cause of action be legal and the other equitable, that one be for liquidated and the other for unliquidated damages, or that one be ex contractu and the other ex delicto.

2. PLEADING (§ 142)—COUNTERCLAIM—FORM OF PLEA.

That a counterclaim for breach of contract, in an action for tort, may not be subject to motion to strike, the pleading must show the connection between the causes of action necessary, under Rev. St. 1909, § 1807, to make the counterclaim permissible.

3. SET-OFF AND COUNTERCLAIM (§ 26)— CAUSES EX CONTRACTU AND EX DELICTO.

Rev. St. 1909, § 1807, as to counterclaim, and section 1866, as to set-off, give a defendant right to set up, by way of counterclaim or set-off, a demand ex contractu against one ex delicto, or vice versa, only where the cause of action and counterclaim grow out of the same transaction.

4. PLEADING (§ 142)—COUNTERCLAIM—FORM OF PLEA.

The counterclaim, "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 a certain sum, does not state facts sufficient to constitute a cause of action.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Benjamin P. Finney against Samuel B. Raudabaugh. Judgment for plaintiff, and defendant appeals. Affirmed.

Whaley & Ing and B. J. Puckett, all of Poplar Bluff, for appellant. Phillips, Lentz & Phillips, of Poplar Bluff, for respondent.

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, R. S. 1909....