Kamerick v. Castleman
| Decision Date | 06 December 1886 |
| Citation | 23 Mo.App. 481 |
| Parties | JOHN KAMERICK, Respondent, v. LEWIS CASTLEMAN ET AL., Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Cooper Circuit Court, HON. E. L. EDWARDS, Judge.
Reversed and remanded.
Statement of case by the court.
This is an action in trespass, for wrongfully entering the close of plaintiff, and the consequent loss of a crop of corn standing in the field. The petition alleges that the plaintiff rented from the defendant, Castleman, certain lands for the year beginning March 1, 1884, and ending March 1, 1885. That plaintiff had cultivated thereon a large crop of corn, which was standing in the field, matured, on the twenty-third day of October, 1885, when one Parish, the constable of the township in which said premises were situate, under a pretended writ of entry from a justice of the peace wrongfully and unlawfully, and with force and arms, put plaintiff off of the premises, and thereby plaintiff lost a crop of corn, by reason of which he was damaged, etc. That said pretended writ of entry was without warrant of law and void; that the constable before executing the same demanded of the plaintiff therein, said Castleman, an indemnifying bond, who thereupon executed such bond with the other defendants, Thomas Wallace and George Cockrell, as sureties and that said defendants incited and instigated the said constable to commit the wrong and trespass complained of.
The petition, as to said constable, was dismissed before trial. Cockrell and Wallace made answer tendering the general issue. Castleman answered separately, tendering the general issue, and pleading specially the contract of rent between him and plaintiff, whereby he had left to plaintiff, in February 1884, certain lands, on which the alleged trespass was committed, to be cultivated that season by plaintiff in corn, oats and wheat, on the shares. This defendant also pleaded that plaintiff had failed to perform the said contract on his part, to defendant's damage, which was set up as a counterclaim. On motion of plaintiff this counter-claim was stricken out. On trial had before a jury, the evidence tended to show that in February, 1884, the defendant, Castleman, the owner of the premises in question, entered into a written contract with plaintiff, whereby he let to plaintiff certain fields and lands, to be cultivated in corn, oats and wheat, on the shares, the particulars of which more fully appear in the opinion of the court.
The defendant, Castleman, prior to the alleged trespass, claiming that plaintiff was in default in his rental, began action against him in a justice's court, under the landlord and tenant act. Judgment was rendered therein in favor of Castleman for the amount of money claimed, but the judgment entered by the justice did not contain any award of restitution of the premisis. On the writ of fi fa issued thereon the justice, however, made an order of restitution. It was under this writ that the constable delivered the possession of the premises to Castleman.
There was much evidence, pro and con, and as to the value of the corn and the amount taken by Castleman. Under an instruction from the court the jury were authorized to find for plaintiff the full value of the corn so taken or destroyed. The jury returned a verdict for plaintiff in the sum of four hundred and eighty dollars. From this judgment defendants have appealed.
GEORGE A. CASTLEMAN, COSGROVE & JOHNSTON and W. B. PENDLETON, for the appellants.
I. The counter-claim set up in answer was good in this action, and it was error to strike it out. McAdow v. Ross, 53 Mo. 199; Richie v. Hayward, 71 Mo. 560; Emery v. Railroad, 77 Mo. 339.
II. Castleman and Kamerick were tenants in common of the corn, under the agreement to share the crops grown upon the land in lieu of rent. Steward v. Doughty, 9 Johnson (N. Y.) 108; Hatch v. Hart, 40 N.H. 98; Smith v. Tankersley, 20 Ala. 215; Walls v. Preston, 25 Cal. 59; Johnson v. Hoffman, 53 Mo. 504. It was, therefore, error for the court to instruct for the full value of the corn.
III. Castleman was also tenant in common of the lands. He held them in common with Kamerick. Harrower v. Heath, 19 Barb. 331; Foote v. Calvin, 3 Johnson (N. Y.) 216.
IV. Defendants, Wallace and Cockrell, had not any actual connection or participation in the alleged trespass, and are connected therewith constructively by reason of signing the bond of indemnity to the constable for the execution of the supposed writ of possession of the land. Putting Castleman into possession of the land did not affect the tenant's possession and right to the crop. Parris v. Frink, 49 N.Y. 24; Daniels v. Brown, 34 N.H. 494.
V. A tenant in common of the crop, Castleman had a right to enter peacefully upon the land and take the corn, and for such action cannot be held at all in trespass. Fiquet v. Allison, 12 Mich. 331; Daniels v. Brown, 34 N.H. 494.
DRAFFEN & WILLIAMS, with J. F. TAYLOR, for the respondent.
I. There was no error in striking out the counterclaim set up by Castleman. Plaintiff's action was for tort, and did not spring from, and was in no manner connected with a contract. The counter-claim did not " arise out of the transaction set forth in the petition, as the foundation of plaintiff's claim, nor was it connected with the subject of the action." Whittlesey on Pract., sect. 190; Pomeroy's Rem. Rights, sect. 788; Richie v. Hayward, 71 Mo. 560; People v. Dennison, 84 N.Y. 272; Barnes v. McMullins, 78 Mo. 260.
II. The relation of landlord and tenant existed between the defendant, Castleman and plaintiff, notwithstanding the rent was to be paid by a part of the crop. Where possession of the land is given, it is held to create a tenancy. Johnson v. Hoffman, 53 Mo. 504; Alwood v. Ruckman, 21 Ill. 200.
III. The terms of the agreement were broad enough to give plaintiff the sole possession of the land, and the actions of the parties show that such was their intention. Taylor v. Zapp, 14 Mo. 489.
IV. In any view of the matter plaintiff was entitled to a verdict. He is entitled to recover the value of the corn. He was the owner thereof until Castleman's rent was set off to him. Atwood v. Ruckman, supra; Waterman on Trespass, sect. 967. Defendant, Castleman, having wrongfully evicted plaintiff was not entitled to rent. Taylor on Landlord and Tenant, section 378.
V. The defendants, Cockerill and Wallace, having signed the bond of indemnity, are liable in this action. Wetzel v. Waters, 18 Mo. 396; Ball v. Loomis, 29 N.Y. 412.
VI. The proceedings under which this action was taken were manifestly void. Defendant took the crops and used them, and by the action of the lower court is required to pay for them.
I. The first question, in order of proceeding in the trial court, for determination is, the correctness of the action of the court in striking out the counter-claim. The contention of respondent is that the action is not founded on the contract of rent, but is in tort, for the wrongful entry and appropriation of plaintiff's corn; and that where the action is purely in tort a counter-claim predicated on contract between plaintiff and defendant is not permissible. As an abstract proposition this may be true, but the tort may be so connected with and dependent upon the existence of the contract as to connect the counter-claim sufficiently with the subject of the action as to admit it.
The case of People v. Dennison (84 N.Y. 272), cited by respondent, was an action of fraud. The defendant contracted with the state of New York for doing certain work in the construction of a canal. The defendant procured, by false representations from his engineers, false and fraudulent certificates and vouchers as to the work, whereby he defrauded the state out of large sums of money. The action by the people was based solely on the fraud, to recover back money thus obtained from the people, independent and outside of the contract. The defendant set up as a counter-claim a sum due him on his contract with the people. It was disallowed, on the ground that the action was on the fraud wholly disconnected from the contract.
The case of Barnes v. McMullin (78 Mo. 260), holds that a counter-claim based on the fraud and deceit practiced by plaintiff in procuring a contract of sale, and not for a breach of the contract, could not be entertained where the plaintiff's action was based upon a promissory note having no connection with the contract of sale. But the learned commissioner, who wrote the opinion, also held, that all independent express contracts, whether liquidated or unliquidated, are the subjects of counter-claim, and that in all that class of cases in which a tort has been suffered, and the law permits the sufferer to waive the tort and sue in assumpsit, and he prefers the latter, then a counter-claim may be made arising under the same contract.
The converse of this proposition must be equally correct, that where the actor elects to sue in tort, springing out of a contract, pleaded as inducement, the defendant should be allowed a counter-claim growing out of plaintiff's breach of that contract.
Our practice act provides that the defendant may plead as a counter-claim " a cause of action arising out of the contract or transaction, set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action."
In Empire Transportation Company v. Boggiano et al. (52 Mo. 294), the company sued defendant to recover a charge for the transportation of certain goods over its line. The answer set up as a counter-claim damages resulting from plaintiff's negligence as a common carrier in transporting certain fruit for defendant. It was urged against the counter-claim that the negligence of a common...
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