Jansen v. Dolan

• Decision Date: 01 May 1911
• Parties: JANSEN v. DOLAN.
• Court: Missouri Court of Appeals

137 S.W. 27

157 Mo. App. 32

JANSEN v. DOLAN.

St. Louis Court of Appeals. Missouri.

May 1, 1911.

1. SET-OFF AND COUNTERCLAIM (§ 22)—WHEN ALLOWED.

Under Rev. St. 1909, § 1807, subd. 2, providing that, in an action on a contract, a counterclaim may be any other cause of action arising also on contract, and existing at the commencement of the action, where plaintiff deprived defendant of the use of a wagon and harness, defendant could set up such deprivation as a counterclaim as she could waive the tort and sue on an implied contract to pay for such use.

2. JUSTICES OF THE PEACE (§ 93)—PLEADING —COUNTERCLAIM.

Rev. St. 1909, § 1807, subd. 2, regarding counterclaims, is to be liberally construed, to aid in adjudicating matters in one litigation, though a pleading is required in a justice's court. It is sufficient if it affords reasonable notice to the adverse party of the nature of the claim alleged so that it will operate as a bar to another action.

3. JUSTICES OF THE PEACE (§ 93)—PLEADING —COUNTERCLAIM.

Where a counterclaim before a justice of the peace showed that the cause of the action thereon arose from the tort of plaintiff in withholding defendant's wagon and harness, after a demand therefor, and his use thereof for several months, it was sufficient to show that she waived the tort and elected to sue in assumpsit for the reasonable value of such use, especially where the proof thereunder also went to that effect.

4. SET-OFF AND COUNTERCLAIM (§ 40)—EXTENT OF RECOVERY.

Under Rev. St. 1909, § 1807, providing that in an action on contract, a counterclaim may be any other cause of action arising also on contract and existing at the commencement of the action, so much of a counterclaim as accrued after the action was commenced was improperly allowed.

5. APPEAL AND ERROR (§ 1140)—EXCESSIVE RECOVERY—REMITTITUR.

Where defendant in her counterclaim made a charge of $1 per day, excepting Sundays and holidays, for the use of a wagon from September 4, 1908, to January 26, 1909, and the action was brought November 17, 1908, and the jury allowed her the entire sum, the cause is one where remittitur may be ordered, and so much of the recovery as was allowed after action brought deducted from the judgment.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by George R. Jansen, doing business as George R. Jansen Transfer Company, against Annie E. Dolan, doing business as St. Louis Feather Duster & Broom Company. On appeal from a Justice of the Peace to the City Court, judgment for plaintiff on an account, and for defendant on a counterclaim, and plaintiff appeals. Reversed and remanded, with directions.

Rippey & Kingsland, for appellant. William I. Igoe, for respondent.

NORTONI, J.

This is a suit on an account. Defendant interposed a counterclaim. The finding and judgment, besides being for plaintiff on the account, was for defendant on the counterclaim as well, and from this judgment plaintiff prosecutes the appeal.

There is no controversy about the matter of the account sued upon, and the question for decision relates alone to defendant's right of recovery on the counterclaim interposed by her. It is argued the counterclaim sounds in tort and is therefore not a competent matter of consideration for the reason it does not assert a cause of action arising out of the contract or transaction set forth in plaintiff's complaint, nor is it connected with the subject of the action.

It is true the matter set forth in the counterclaim does not arise out of the contract or transactions set forth in the petition, and it is true, too, that it is not connected with the subject of the action, but it is entirely clear a portion of it is competent matter of counterclaim under the second subdivision of the statute (section 1807, R. S. 1909), for, though a tort appears, plaintiff might waive it and sue in assumpsit on the implied undertaking to pay.

Plaintiff sued defendant before a justice of the peace, as above stated, on an account. By way of answer thereto, defendant interposed her counterclaim for plaintiff's having deprived her of the use of a one-horse stake wagon and one set of harness, which it is averred she owned at the time from September 4, 1908, to January 26, 1909, excepting Sundays and...