Kinney v. Miller

• Decision Date: 31 October 1857
• Parties: KINNEY, Respondent, v. MILLER et al., Appellants.
• Court: Missouri Supreme Court

25 Mo. 576

KINNEY, Respondent,

v.MILLER et al., Appellants.

Supreme Court of Missouri.

October Term, 1857.

1. Matter set up in an answer as a counter-claim should be separately stated.

2. Where an answer improperly blends and defectively states matters set forth therein as a defense, and as a counter-claim, the proper mode of taking advantage of the defect is, not by demurrer to the whole answer, but by motion to strike out either the whole of it or such portions as are defectively pleaded.

Appeal from Stoddard Circuit Court.

This was an action on a promissory note for $350, executed by defendants. The court sustained a demurrer to the following answer: “Defendants, for answer to plaintiff's petition, say they admit that they executed the note sued on, but defendants further state that they were induced to execute the said note by false and fraudulent representation of plaintiff--that is to say, plaintiff induced defendants to believe that he was the owner of the west half of the southeast quarter, and the east half of the southwest quarter of section thirty-six, in township, etc., containing one hundred and sixty acres, and by the false and fraudulent representations of plaintiff, as aforesaid, thereby induced Stephen Miller, the defendant first above named, to purchase the above described real estate of plaintiff, for which the said note was executed by said Stephen as principal, and F. W. Miller as his security; when in truth and in fact the said plaintiff had no right whatever to the west half of the southeast quarter of section thirty-six, in township, etc., containing eighty acres, but said land belonged at that time to the Cairo & Fulton Railroad Company of Missouri. And defendant further states that he has made valuable and lasting improvements on said land by clearing the land of trees and brush, and putting up fencing thereon, and digging of well, worth two hundred dollars. Therefore defendants ask that the contract be rescinded, and the note canceled; and defendants further state that by the false and fraudulent representations aforesaid, made by the plaintiff to defendants, they, defendants, are damaged to the amount of five hundred dollars; for which they ask judgment.”

The sustaining a demurrer to this answer constitutes the error complained of.

Noell, for appellants.

I. The court erred in sustaining the demurrer to the answer. The answer set up a good defense. The fact that the title to one-half the land had failed, was a sufficient ground for a rescission of the contract of sale. At all events, defendants were entitled to a recoupment of damages against the claim for the purchase money. (16 Mo. 369; Coffman v. Huck, 19 Mo. 435; 20 Mo. 496.)

RICHARDSON, Judge, delivered the opinion of the court.

According to the present practice, a demurrer will not lie to an answer except so far as it contains new matter constituting a counter-claim. The whole subject is regulated by article 6, of Practice in Criminal Cases. (R. C. 1855, p. 1226.) The only pleading on the part of the defendant is either a demurrer or an answer. (Sec. 4.) The office of a demurrer is defined in the sixth section; and the answer must contain: “ First, a special denial of each material allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; second, a statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition.” (Sec. 12.) The counter-claim cannot be for any cause of controversy between the plaintiff and defendant, but “must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, 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; second, in an action...