Fricke v. W. E. Fuetterer Battery and Supplies Company

• Citation: 288 S.W. 1000,220 Mo.App. 623
• Parties: VOURDON FRICKE, ASSIGNEE, RESPONDENT, v. W. E. FUETTERER BATTERY AND SUPPLIES COMPANY, A CORPORATION, APPELLANT. *
• Decision Date: 02 November 1926
• Court: Missouri Court of Appeals

288 S.W. 1000

220 Mo.App. 623

VOURDON FRICKE, ASSIGNEE, RESPONDENT, v. W. E. FUETTERER BATTERY AND SUPPLIES COMPANY, A CORPORATION, APPELLANT. *

Court of Appeals of Missouri, St. Louis

November 2, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.

Judgment reversed and cause remanded.

Anderson Gilbert & Wolfort for appellant.

(1) The assignee takes no greater title than the assignor. Section 2161, R. S. 1919; Rice v. McFarland, 34 Mo.App. 411. (2) The parts of the answer stricken out admit that the only goods purchased by defendant were under its contract, and that the Cincinnati Storage Battery Company breached its contract. (3) The parts of the answer stricken out admit that the plaintiff's attorneys fraudulently procured the assignment of the claim to endeavor to preclude the defendant from interposing a counterclaim. (4) Where goods are purchased under contract the other provisions of the contract are part of the consideration of the purchase and a failure to perform them is a defense as failure of consideration. Langdon v. Markle, 48 Mo. 360; Roman v. Trading Co. 87 Mo.App. 186.

Frank Lee and John V. Lee for respondent.

(1) Absent exceptions written out, signed, approved and filed at the time, concerning the pleadings, a motion for a new trial cannot galvanize exceptions into life. And claimed error, thus preserved, must be again included in the motion for new trial. Hurt v. King, 24 Mo.App. 597; Kern v. Schmedler, 92 Mo. 516; Barber v. Ulman, 137 Mo. 564; Rigdon v. Ferguson, 172 Mo. 52; County v. Bank, 175 Mo. 539; Blanchard v. Dorman, 236 Mo. 436; Moran v. Stewart, 246 Mo. 472; Interstate Railway Co. v. Railroad, 251 Mo. 718; State ex rel. v. Gill & Sons, 220 S.W. 978; Leahy v. Mercantile Trust Co., 247 S.W. 401; Bank v. McMenamy, 35 Mo.App. 203. (2) Only such exceptions as fall within the purview of the motion for a new trial are continued with that motion; exceptions to action on the pleadings must be written out, signed and filed during the term. Brewing Co. v. Ehlhardt, 139 Mo.App. 135; Leahy v. Merc. Trust Co., supra; Bank v. McMenamy, supra. (3) Besides, the action of the court below was not error. Equities of third parties who had dealt directly with the original creditor cannot affect the assignee. Bauerdorf v. Wall Paper Co., 203 S.W. 221; Bartlett v. Eddy, 49 Mo.App. 44. (4) A demand for damages is not a debt. The consideration paid is not a proper subject of inquiry. Caldwell v. Ryan, 210 Mo. 17; Bank v. Kirkham, 156 Mo.App. 309; Young v. Hudson, 99 Mo. 102; Halvorson v. Trust Co., 222 S.W. 897. (5) There is no merit to this appeal, which is vexatious within the statute, and the penalty should be assessed. Sec. 1515, R. S. 1919; Enright v. Hale Petroleum Co. (Mo. Sup.), 250 S.W. 908.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

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 up 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 Company failed and neglected to perform its part of said contract and breached said contract; 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 questions 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, Revised Statutes 1919, are peculiarly pertinent, as follows:

"Sec 1232. The answer of the defendant shall contain: First, a general or specific denial of each material allegation of the petition controverted by the defendant, or any knowledge or information thereof sufficient to form a belief: Provided, that it shall be competent for the defendant to unite a general and specific denial in the same answer; second, a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition."

"Sec. 1233. The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and 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 the 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. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the cause of action which they are intended to answer."

"Sec 1292. If any two or more persons are mutually indebted in any manner whatsoever, and one of them commence an action against the other, one debt may be set off against the other, although...