Krausse v. Greenfield

• Court: Supreme Court of Oregon
• Writing for the Court: MOORE, J. (after stating the facts as above).
• Citation: 123 P. 392,61 Or. 502
• Decision Date: 30 April 1912
• Parties: KRAUSSE et al. v. GREENFIELD et al.

123 P. 392

61 Or. 502

KRAUSSE et al.
v.
GREENFIELD et al.

Supreme Court of Oregon

April 30, 1912

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by O.E. Krausse and another, partners as Krausse Brothers, against George L. Greenfield and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is an action by O.E. Krausse and J.R. Krausse against George L. Greenfield and Laura Greenfield to recover money. It is stated in the complaint, in effect, that at all the times mentioned therein plaintiffs were partners, as Krausse Bros., and engaged in the wholesale shoe business in Portland; that on October 26, 1909, a contract was entered into whereby plaintiffs stipulated to furnish to defendants, on certain conditions, a reasonable quantity of goods, in order to enable the latter to carry on in that city a retail trade in shoes, and in consideration thereof defendants agreed to pay plaintiffs 20 per cent. of the invoice price of any goods that should remain in their custody 90 days or longer, in case possession thereof should be taken by plaintiffs pursuant to the terms of the contract, which stipulation was an undertaking on defendant's part to pay plaintiffs the damages which the goods would necessarily sustain by their removal from plaintiffs' stock, and by their use for retail purposes for the time specified; that according to the terms of the contract plaintiffs furnished to defendants merchandise of the invoice price of $4,014.15, which stock on July 11, 1910, had been in their possession 90 days or more when the goods were returned to plaintiffs, but in the meantime such merchandise had deteriorated in value to an amount largely exceeding $1,000; that defendants have failed to pay plaintiffs 20 per cent. of the invoice price of the goods or any part thereof; and that by reason of the premises there is now due from the defendants to the plaintiffs $802.89, with interest from July 11, 1910, for which sum judgment was demanded. The answer denied the material averments of the complaint, and for a further defense alleged that on July 8, 1910, defendants were in possession of a quantity of shoes, theretofore delivered to them by plaintiffs under an agreement that, if such merchandise should remain for 90 days or more in the possession of the defendants, they would pay plaintiffs 20 per cent. of the invoice price of such goods, on account of deterioration in the value thereof, and that the contract here referred to is the same agreement specified in the complaint; that about July 8, 1910, plaintiffs took from defendants such shoes, and ever since have retained possession thereof; and at that time the shoes had not deteriorated in value. For a partial defense and by way of counterclaim, the answer sets forth the substance of the agreement between the parties, as hereinbefore stated, and avers that on July 8, 1910, plaintiffs entered the premises of defendants, against their will, and took possession of and removed the shoes mentioned, and in doing so unnecessarily, wrongfully, and maliciously interrupted defendants' business, thereby turning away numerous customers and patrons, whereby their trade was lost, to defendants' damage in the sum of $500. A demurrer to this last clause of the answer, on the ground that the facts stated did not constitute a defense to the action, was sustained. The remaining allegations of new matter in the answer were put in issue by a reply, whereupon the cause was tried without a jury, and findings of fact and of law were made in accordance with the averments of the complaint; and, a judgment having been rendered for plaintiffs for the sum demanded, the defendants appeal.

William A. Williams (H.C. King, on the brief), both of Portland, for appellants.

Wallace McCamant (Snow & McCamant, on the brief), all of Portland, for respondents.

[61 Or. 506] [123 P. 394]

MOORE, J. (after stating the facts as above).

It is contended that the facts alleged as a partial defense constituted a valid counterclaim to the cause of action set forth in the complaint, and that in sustaining a demurrer to that part of the answer an error was committed.

The statute prescribes what an answer shall contain, and declares that it may include a counterclaim. L.O.L. § 73. "The counterclaim mentioned in section 73 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: (1) A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff's claim; (2) in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished." Id. § 74. This enactment does not contain the provision found in the Codes of many other states, to wit, "or connected with the subject of the action." In equity, however, it is sufficient if the counterclaim be connected with the subject of the suit. L.O.L. § 401; Dove v. Hayden, 5 0r. 500; LeClare v. Thibault, 41 Or. 601, 69 P. 552; Merrill v. Hexter, 52 Or. 138, 94 P. 972, 96 P. 865. While the common-law forms of action have been abolished in this state (L.O.L. §...