Johnson v. Sargent

• Decision Date: 12 September 1958
• Citation: 109 Ohio App. 16,163 N.E.2d 401
• Parties: , 10 O.O.2d 149 JOHNSON, Appellee, v. SARGENT, Appellant.
• Court: Ohio Court of Appeals

Page 16

109 Ohio App. 16

163 N.E.2d 401, 10 O.O.2d 149

JOHNSON, Appellee, v. SARGENT, Appellant.

Court of Appeals of Ohio, Darke County.

Sept. 12, 1958.

Syllabus by the Court.

1. Facts which are strictly defensive, and which if pleaded in an action at law would state a good defense, do not constitute a counterclaim. If the defendant does not avail himself of such defense he is thereafter barred from utilizing it in a subsequent suit.

2. In an action on a judgment for damages resulting from an automobile collision, a cross-petition to recover damages for breach of contract, alleging that the parties orally agreed that neither would report the accident and that each would pay the damage to his own car, alleges strictly defensive matter which defendant, having failed to assert in the original action as a defense, may not assert as a counterclaim in a subsequent action by the plaintiff on the judgment.

3. Under the provisions of Section 2309.16, Revised Code, defining counterclaim, in part, as 'a cause of action existing in favor of one or more defendants against one or more plaintiffs * * * ascertained by the decision of a court,' the words, 'ascertained by the decision of a court,' refer to the defendant's cause of action, not to the plaintiff's and do not permit the defendant, in an action where the plaintiff's cause of action has been ascertained by the decision of a court, to plead by way of counterclaim a defense which could have been interposed in the original action.

Spidel, Staley & Hole, Greenville, for appellant.

Marchal & Marchal, Greenville, for appellee.

WISEMAN, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County, sustaining a demurrer to the defendant's cross-petition and, upon the defendant electing not to plead further, dismissing the cross-petition.

The plaintiff and the defendant were involved in an automobile collision in the city of Omaha, state of Nebraska, in which both sustained damages as a result of the collision. Plaintiff brought an action for damages in the Municipal Court of Omaha. The defendant did not defend this action and judgment was rendered against him. Subsequently, plaintiff sued on the judgment in the Common Pleas Court of Darke County, where the defendant resides. The defendant in his answer admitted that plaintiff recovered a judgment against him, but denied he was indebted to the plaintiff. By way of cross-petition the defendant claims damages from the plaintiff by reason of a breach of contract, alleging that at the scene of the accident the plaintiff and the defendant entered into an oral agreement whereby 'neither of them should report his damages to their respective insurance companies and each would pay the damage to their respective automobiles. That thereafter, in violation of said agreement, the plaintiff, Arthur C. Johnson, commenced an action against this defendant in the Municipal Court of Omaha, Douglas County, Nebraska, to recover damages,' and that by reason of the breach of contract, the defendant has been damaged.

To the cross-petition the plaintiff filed a motion to strike, which the court treated as a demurrer. The order of the court sustaining the demurrer and dismissing the cross-petition is assigned as the sole ground of error.

The appellee contends that the allegations contained in the cross-petition are defensive in character and do not constitute a counterclaim. Without question, if the defendant had interposed such defense in the Municipal Court of Omaha and supported it by evidence, it would have constituted a complete defense to the action. In our opinion, the allegations which are made the subject of the counterclaim are strictly defensive and, under the ruling of the Supreme Court in Rothman v. Engel, 97 Ohio St. 77, 119 N.E. 250, cannot be the subject of a counterclaim. The first paragraph of the syllabus in that case is as follows:

'Facts that are strictly defensive, and which, if pleaded in an action at law, would state a good defense, do not constitute a 'counterclaim.' And if the defendant does not avail himself of such defense, he will be barred from utilizing it in a subsequent suit.'

The contention which is made by the appellant in the case at bar was made in the cited case. On page 79 of 97 Ohio St., on page 251 of 119 N.E. it is stated:

'But the contention now urged, and which was sustained by the Court of Appeals, is that, though Engel could have interposed that defense in the former action for damages, she had the election to permit judgment against her in the law case and reserve her defense as a basis for a counterclaim in a subsequent equitable action to cancel the agreement.

'If the principle applied by the Court of Appeals be upheld, then, after foreclosure of a mortgage, or recovery of judgment upon a negotiable instrument, or after specific performance of a contract for the conveyance of realty, a defendant, in either of above-mentioned cases, may...