Fricke v. W.E. Fuetterer Battery & Supplies Co.
| Citation | 288 S.W. 1000 |
| Decision Date | 02 November 1928 |
| Docket Number | No. 19464.,19464. |
| Court | Missouri Court of Appeals |
| Parties | FRICKE v. W.E. FUETTERER BATTERY & SUPPLIES CO. |
Appeal from St. Louis Circuit Court; Granville Hogan, Judge.
Action by Vourdon Fricke, assignee, against the W. B. Fuetterer Battery & Supplies Company Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Anderson, Gilbert & Wolfort, of St. Louis, for appellant.
Frank Lee and John V. Lee, both of St. Louis, for respondent.
This is an action upon an account amounting to $1,223.97 for batteries sold and delivered to defendant by the Cincinnati Storage Battery Company.
The petition alleges that the defendant became indebted to the Cincinnati Storage Battery Company, a corporation, upon an account for storage batteries sold and delivered to defendant at its special instance and request in the sum of $1,223.97, and that the account was afterwards for value sold and assigned to the plaintiff.
The answer denies generally the allegations of the petition, and sets up by way of affirmative defense facts constituting a counterclaim against the Cincinnati Storage Battery Company amounting to more than the account sued on. On motion of the plaintiff, this affirmative defense was stricken out by the court below. The trial resulted in a judgment for plaintiff for the full amount of the account sued on, and from this judgment the defendant has appealed.
The act of the court in striking out the affirmative defense set un in the defendant's answer is assigned as error here. The defense is predicated upon the breach of a contract entered into between the Cincinnati Storage Battery Company and the defendant, under and pursuant to which contract the batteries sued for were sold to the defendant. 'No question being made as to the validity or construction of the contract pleaded, it will not be necessary to set it out in detail.
The answer, "for further defense in bar, counterclaim, and set-off to plaintiff's alleged cause of action," alleges, in substance: That the Cincinnati Storage Battery Company, an Ohio corporation, made and entered into a written contract with defendant whereby said Cincinnati Storage Battery Company agreed to sell to defendant, upon receiving written orders therefor, any of its standard automobile starting and lighting types of batteries and parts thereof which the defendant might require at prices designated in the contract, and to protect the defendant within certain described territory in the states of Missouri and Illinois to the extent that there should be no other dealer or' service station appointed or sold within that territory, and the defendant agreed to purchase and actively push the sale of such automobile starting and lighting types of batteries and parts thereof and establish service stations throughout said territory; that thereafter, pursuant to said contract, defendant purchased articles and faithfully performed all its parts of said contract; that said Cincinnati Storage Battery that the said Cincinnati Storage Battery Company violated its part of said contract by failing to protect the defendant in its territory by establishing other dealers and service stations and selling within said territory and in refusing to sell its batteries and parts to defendant as required by said contract, to the defendant's damage in a sum in excess of plaintiff's demand; that said claim of defendant arose prior to the assignment of said account to the plaintiff; that the batteries purchased by defendant from the Cincinnati Storage Battery Company were purchased under and pursuant to said contract; that the said Cincinnati Storage Battery Company employed Gatewood and associates as its attorneys to represent it in collecting the amount claimed to be due from defendant on said account; that said Gatewood and associates represented defendant as attorneys in collection matters; that thereby said Cincinnati Storage Battery Company fraudulently learned the plan of defendant to interpose a counterclaim to said claim and learned of the evidence supporting said counterclaim and the details thereof; and that having learned this, the said Cincinnati Storage Battery Company pretended to execute to the plaintiff, who is an employee of said Gatewood and associates, an assignment of its claim against defendant.
In support of the court's action in striking out the affirmative defense set up in the answer, plaintiff urges that the facts pleaded show a claim against the Cincinnati Storage Battery Company for unliquidated damages, constituting a counterclaim, and not a set-off, and may therefore not properly be set up as a defense to the plaintiff's action on the assigned account. The question is thus raised as to whether or not a defendant in a suit by the assignee of an ordinary chose in action may set up as a defense against recovery by the assignee a counterclaim for unliquidated damages existing in favor of the defendant against the assignor at the time the chose in action was assigned, and which could have been properly pleaded against the assignor if such assignor had himself brought suit upon the chose in action. That the defendant may set up as a defense in a suit on an assigned chose in action any set-off which existed in his favor against the assignor at the time of the assignment is conceded. Counterclaims and set-offs are purely statutory. They were unknown to the common law. The decision of the question here involved necessarily depends, therefore, upon the proper construction of our statutes relating to counterclaims and set-offs.
The provisions of sections 1232, 1233, 1292, and 1293, R. S. 1919, are peculiarly pertinent, as follows:
These provisions appear in the Code of Civil Procedure, being chapter 12, R. S. 1919. Sections 1232 and 1233 appear in article 5, relating to pleadings. Sections 1292 and 1293 appear in article 7, relating to set-offs. The provisions of these sections are closely related and must be construed together. They are remedial in their character, and ought to be liberally construed as such. It is urged that, under the provisions of section 1292, only liquidated demands are recognized as set-offs and that only such demands are comprehended within the provisions of section 1293, allowing the defendant in a suit by the assignee of an ordinary chose in action to set up "every just set-off or other defense" existing in favor of the defendant at the time of his being notified of the assignment, and that these provisions do not comprehend counterclaims as" defined in section 1233. There is no question under the authorities that the demands authorized to be used as set-offs under the provisions of section 1292 are liquidated demands, but it does not necessarily follow that only such demands are comprehended within the terms, "every just set-off or other defense," as employed in section 1293. There is a difference between counterclaims and set-offs as defined by the statute, but there is a very close resemblance between them. In fact, it has become a common practice to use the terms interchangeably. A counterclaim is a counter demand existing in favor of defendant against the plaintiff. So is a set-off. If the defendant's counterclaim be equal to or greater than the plaintiff's demand, the plaintiff's demand is extinguished by the counterclaim, and the plaintiff cannot recover any judgment on his demand; if the counterclaim exceed the plaintiff's demand, the defendant may take judgment for the excess, that is to say, he may take judgment for the portion of his counterclaim not used or consumed in extinguishing the plaintiff's demand; if the counterclaim be less than the plaintiff's demand, it reduces his demand and defeats recovery thereon pro tanto; and if the plaintiff dismiss his suit, the defendant may proceed to judgment upon his counterclaim. The same is true in case of a set-off. A counterclaim, as authorized and defined in section...
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