Hembrock v. Stark

• Decision Date: 31 October 1873
• Citation: 53 Mo. 588
• Parties: ANTON HEMBROCK, Appellant, v. HENRY STARK, Respondent.
• Court: Missouri Supreme Court

53 Mo. 588

ANTON HEMBROCK, Appellant,

v.HENRY STARK, Respondent.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Charles Circuit Court.

B. B. Kingsbury, for Appellant.

I. The court erred in not sustaining the motion of appellant to strike out the defense of the counter-claim. (2 W. S., 1016, § 13; Holzbauer vs. Heine, 37 Mo., 443; Kinney vs. Miller, 25 Mo., 576.)

W. A. Alexander, for Respondent.

I. Plaintiff violated his contract to release, and Stark had a right to set up the release contract in his answer, by way of counter-claim, and recover in this suit whatever damages he suffered by reason of Hembrock's violation of his said release agreement. (Reed vs. Chubd, 9 Iowa, 178; 10 Iowa, 23; Reed vs. Samuel 22 Tex., 114.)

ADAMS, Judge, delivered the opinion of the court.

The plaintiff brought an action by attachment under the Landord and Tenant Act, for rent.

The defendant by answer denied all the material allegations of the petition, and as a further defense and counter-claim set up, that the plaintiff had released him from the payment of the alleged rent under and by virtue of an agreement with him, that if the defendant would surrender the possession of the farm before his time expired, the plaintiff would discharge him from payment of any rent in arrear or unpaid. And the answer further alleges, that it was a part of the agreement, that the plaintiff was to take care of what property might be left on the place belonging to defendant; and the answer further charges, that the plaintiff violated his agreement, by suing out this attachment and causing it to be levied on defendant's property left on he farm, and causing the same to be sold under the proceedings in the attachment suit; that the property sold was worth five hundred dollars, and that the plaintiff thereby converted the same to his own use; and the defendant claimed judgment for the amount of said property by way of counter-claim The plaintiff filed a motion to strike out the alleged release and counter-claim, but the court overruled this motion, and the plaintiff excepted. He then replied to the new matter and counter-claim set up in the answer. The case was submitted to a jury and upon the trial each party gave evidence tending to prove the issues on his part. The court at the instance of the defendant gave an instruction to the effect, that if the jury found for him, they must assess his damages at the amount of the proceeds of the sale of his property under the attachment. The plaintiff objected to this instruction, and excepted to the ruling of the court in giving the same. The jury found for defendant, and assessed damages in his favor at the amount of the sale of his property under the proceedings in attachment. The plaintiff filed a motion for a new trial which was overruled, and he excepted, and has brought the case here by...