Grand Lodge of Masons v. Knox

• Decision Date: 31 March 1855
• Parties: GRAND LODGE OF MASONS, Respondent, v. KNOX, Appellant.
• Court: Missouri Supreme Court

20 Mo. 433

GRAND LODGE OF MASONS, Respondent,

v.KNOX, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1. In an action upon bonds given for the purchase money of land, the defendant may set up by way of recoupment damages for the removal and conversion of fixtures, without his knowledge or consent, after the contract of sale and before a formal transfer of the land and the execution of the bonds.

Appeal from Marion Circuit Court.

This was an action upon two bonds for the payment of one thousand dollars each. The defendant, in his answer, set up as a defence that the bonds were given for part of the purchase money of what was known as the Marion College tract of land, with the buildings and improvements thereon situate, bought by him of plaintiff; that the contract of sale was made on the 21st of September, 1849, and the bonds executed and delivered on the 29th of October following; that at the time of the sale. “there were within and permanently attached to, and constituting a part of a certain brick house called “the chapel,” standing on said land, five several cases or closets, made and designed for book cases; and that afterwards, and before the possession of said land and premises was delivered to the defendant, and before the delivery of said bonds to the plaintiff, the plaintiff, by her agents, without the knowledge or consent of the defendant, took out from the walls of said house, and carried away and converted to her own use the said cases or closets, and in taking the same out, injured, broke and mutilated the chimney, chimney boards, frames, casings, fire-places and plastering.” The defendant claimed a deduction from the amount of the bonds sufficient to cover the damages sustained by a removal of the cases.

At the trial, the defendant offered evidence that the terms of the sale of the college property were agreed on between the defendant and an agent of the plaintiff on the 21st of September, 1849, and that they were afterwards to meet in St. Louis and execute the writings; that the defendant then returned to his residence in St. Louis county; that on the 29th of October following, he met the plaintiff's agent in St. Louis and executed the bonds sued upon in part payment for the property that at the time of the sale on the 21st of September, there were in the chapel on the land five book-cases, which were seen by the defendant when he agreed to purchase the land, and that he did not again see the property until after the execution of the bonds sued upon; and that in the meantime the book-cases were removed under the authority of the plaintiff.

There was conflicting evidence as to whether the cases removed were fixtures or not, one witness, (whose deposition, taken by the plaintiff, was read by the defendant to prove the removal,) stating that they were fastened to the wall and otherwise attached to the building, and another witness stating differently.

After the defendant had closed his case, the Circuit Court, on motion of the plaintiff, excluded all the evidence offered by him, to which he excepted, and after a verdict for the plaintiff, and an unsuccessful motion for a new trial, appealed to this court. The case was orally argued by Mr. Knox, for appellant, and Mr. Broadhead for respondent.

Knox & Kellogg, for appellant, in their brief cited House v. Marshall, (18 Mo. 369,) and Taylor v. Maguire, (12 Mo. 317,) upon the point that the Circuit Court erred in excluding the evidence offered by the defendant below.

Broadhead, for respondent.

I. The defense set up is a claim for unliquidated damages, and is not the subject of set-off

II. The answer does not sufficiently set out the terms of the contract of sale, and therefore evidence to prove a failure of consideration is out of place.

LEONARD, Judge, delivered the opinion of the court.

The question to be decided here is, whether a purchaser of real property may set up, in diminution of the price, the value of fixtures upon the premises during the treaty and embraced in the sale, which the vendors subsequently, and before the completion of the transaction, removed and appropriated to their own use, without the consent or knowledge, and against the will of the purchaser, This claim having been set up in the answer and the evidence rejected upon the trial, the judgment must be reversed, if the rejected evidence ought to have been retained in the cause. The record does not show the ground upon which the court proceeded in striking it out; but it is argued before us, for the plaintiff, that it is a claim for unliquidated damages, and therefore not allowable as a set-off; and on the other side, that it is good by way of recoupment of damages, which is the matter we have considered, and upon which the cause has been settled here. This doctrine of recoupment, though of ancient origin, has been recently greatly extended in its appplication, and it may not be improper, therefore, on the present occasion, to go more at large into it than is necessary for the decision of this cause, and in doing so, to refer to the leading American cases, for the purpose of showing the application, extent and limitations of the rule.

The common law, confining every suit to the particular subject of litigation that gave rise to it, rigidly excluded all matters of set-off; but the English court of chancery, extending the narrow remedies of the common law, in order to prevent circuity of action and suppress multiplicity of litigation, introduced the principle into their system from the civil law, where it existed under the name of compensation. This method of settling cross demands in one suit, when once introduced, recommended itself so strongly by its natural equity and practical usefulness, that it was ultimately adopted to a limited extent, both in England and the United States, in various statutes of set-off, and still further, in our own State, by the statute in relation to the failure of cousideration. These acts concerning set-off, however, only recognize the right of persons mutually indebted to one another in ascertained amounts, under independent contracts, to set-off their respective debts by way of mutual deduction, so that in any action brought for the larger sum, the residue only should be recovered; and so excluded from their operation claims for unliquidated damages, occasioned either by wrongs done or obligations violated. These were left to the common law, and the same reasons that forced the doctrine, to a partial extent, into the statute law of the land, still continuing to operate, the old doctrine of recoupment has been recently greatly extended in its practical application.

In Dyer's Rep. (2--6), it is laid down in the reign of Henry VIII: “If a man disseize me of land, out of which a rent charge is issuant, which has been in arrears for several years, and the disseisor pay it, if the disseisee recover in our assise, the rent that the disseisor paid shall be recouped in damages.”

Again, in Coulter's case, (5 Rep. 2--31,) it is said: “And as to the case of recouper in damages, in the case of rent service, charge or seck, it was resolved that the reason of the recouper in such case is, because other wise, when the disseisee re-enters, the arrearages of the rent service charge or seck would be revived, and therefore to avoid circuity of action, and “ circuitas est evitandus, et boni judicis est lies, dirimere,ne lis ex lite oriatur,” the arrearages during the disseisin shall be recouped in damages.”

Pullen v. Stamforth, (11 East, 232,) was an action on a policy of...