Jones v. Witousek

• Decision Date: 14 May 1901
• Citation: 86 N.W. 59,114 Iowa 14
• Parties: J. B. JONES, Appellant, v. J. C. WITOUSEK & CO., et al
• Court: Iowa Supreme Court

86 N.W. 59

114 Iowa 14

J. B. JONES, Appellant, v. J. C. WITOUSEK & CO., et al

Supreme Court of Iowa, Des Moines

May 14, 1901

Appeal from Linn District Court.--HON. H. M. REMLEY, Judge.

THE petition filed March 11, 1898, alleged that defendant undertook to put in plaintiff's house a water-heating apparatus, at the agreed price of $ 390, with the guaranty that it have a capacity of heating all rooms in which radiators are placed to a specified temperature in the coldest weather; that during the construction thereof $ 315 of the purchase price was paid; that upon completion, after numerous tests, it wholly failed to heat the house as agreed and was of no value to plaintiff; that he tendered it back to defendants, who refused to receive it. And he prayed judgment for the amount paid, less the value of certain radiators and pipes used by him in putting in another plant: The defendant entered a plea in bar to the effect that on the 27th day of June, 1897, the defendant brought suit for $ 75, the balance of the purchase price on said contract; that plaintiff defended therein by setting up the breach of guaranty as now averred in his petition; that the justice of the peace rendered judgment for defendant therein (this plaintiff) whereupon an appeal was taken to the district court, and upon that a like result reached; that as this petition is based on the identical contract and breach thereof, and the parties are the same, plaintiff is estopped from prosecuting this action. To this plea the plaintiff demurred on the ground, in substance, that there had been no adjudication of the claim stated in the petition. The demurrer was overruled, and, as plaintiff elected to stand on the ruling, the petition was dismissed, and he appeals.

Reversed.

Smith & Smith for appellant.

W. H Storrs for appellees.

OPINION

LADD, J.

Upon the failure of defendant's guaranty, plaintiff had the election of two remedies: He could either pay for and retain the plant and sue for damages, or rescind the contract by the return of the plant, and demand the portion of the purchase price previously paid. According to the petition he pursued the latter course; and it must be conceded, for the purposes of the case, that there was a failure to comply with the terms of the agreement, and, owing to this, a timely tender of the return of the apparatus to defendant. A good cause of action for the $ 315 paid then was stated. And the same facts furnished an equally good defense to the action by defendant in the justice court, and on appeal in the district court, for the portion of the purchase price ($ 75) which had not yet been paid. On what theory can it be said that, because these facts have been successfully pleaded in defense of a claim asserted by defendant, they may not furnish the basis of an action for recovery by the plaintiff? The latter could not have pleaded his cause of action by way of counterclaim, as it exceeded in amount the jurisdiction of the justice. Section 4477, Code. Nor was he bound to do so. Section 3440 Code. Is he without a remedy? It is well settled that a set-off or counterclaim may or may not be pleaded, as the defendant shall elect; and, unless it is pleaded, the right to sue upon it is an independent cause of action, or to rely upon it in defense of another action by the same plaintiff, is in no wise affected or impaired by a...