Kentling & Kentling v. Managers

• Decision Date: 07 December 1923
• Docket Number: No. 3403.,3403.
• Citation: 256 S.W. 528
• Parties: KENTLING & KENTLlNG v. MAGERS.
• Court: Missouri Court of Appeals

256 S.W. 528

KENTLING & KENTLlNG v. MAGERS.

No. 3403.

Springfield Court of Appeals, Missouri.

December 7, 1923.

Appeal from Circuit Court, Christian County; Fred Stewart. Judge.

Action by Kentling & Kentling against Guy Magers, who set up a counterclaim. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions to set aside judgment, dismiss counterclaim, and enter judgment for plaintiffs.

Page & Barrett, of Springfield, for appellants.

G. Purd Hays, of Ozark, for respondent.

BRADLEY, J.

This is a suit to recover an alleged balance due of $55.21 on an account. Defendant filed a counterclaim. The cause was commenced in a justice of the peace court, appealed to the circuit court, and tried before the court without a jury. The court found a balance of $9.79 in favor of defendant, and gave judgment accordingly. There was no special finding on plaintiffs' demand, and none on defendant's counterclaim, but he judgment clearly indicates that the finding was for plaintiffs on their demand, and for defendant on his counterclaim, and that the finding for defendant exceeded by $9.79 the finding for plaintiffs. The judgment is irregular, but it is not necessary to consider that feature.

Plaintiff firm is composed of F. F. Kentling and his wife, who conduct a store at Highlandsville in Christian county, and such was the membership of the firm when defendant's account was made. Defendant's counterclaim is a demand against F. F. Kentling only, and is not against both of the partners. Defendant did not contest the account against him. He took the lead, and presented his evidence to support his counterclaim. At the close of the evidence plaintiffs demurred to the evidence introduced in support of the counterclaim on the ground that it appeared that the counterclaim was a demand against F. F. Kentling only. The demurrer was overruled. No declarations were asked and none given.

There is no question but that the counterclaim is a demand against F. F. Kentling only. This in effect is admitted. A demand against one of the partners cannot be the basis of a set-off or counterclaim against a partnership demand. Payne v. O'Shea, 84 Mo. 129; Nipper v. Jones, 27 Mo. App. 538; Weil v. Jones, 70 Mo. 560. Defendant seeks to avoid this rule by asserting that the point was waived by plaintiffs' failure to raise it by motion to dismiss or to strike. On its face the counterclaim appears to be against the partnership. The fact that it was against...