National Handle Co. v. Huffman

• Decision Date: 22 June 1909
• Citation: 120 S.W. 690,140 Mo. App. 634
• Parties: NATIONAL HANDLE CO. v. HUFFMAN.
• Court: Missouri Court of Appeals

120 S.W. 690

140 Mo. App. 634

NATIONAL HANDLE CO. v. HUFFMAN.

St. Louis Court of Appeals. Missouri.

June 22, 1909.

1. SET-OFF AND COUNTERCLAIM (§ 44)—SUIT AGAINST SURVIVING PARTNER—INDIVIDUAL CLAIM.

Where a partnership gave its note for a part of the price of a mill purchased by the partnership to carry out a contract with the payee, damage accruing to the surviving partner individually could not be urged as a counterclaim in an action on the note against such surviving partner.

2. ACTION (§ 53)—SPLITTING CAUSE OF ACTION.

To permit a surviving partner to urge his individual interest in a partnership demand as a counterclaim against a partnership debt would amount to a splitting of a cause of action.

3. SET-OFF AND COUNTERCLAIM (§ 44)—JOINT OBLIGATIONS—SET-OFF OR COUNTERCLAIM.

Rev. St. 1899, § 4491 (Ann. St. 1906, p. 2460), providing that in actions against joint obligors any debt or demand due from the plaintiff to defendant in the action, or to all the obligors in the contract sued on, may be set off against the demand of plaintiff, applies to a set-off alone, and not to a counterclaim.

4. SET-OFF AND COUNTERCLAIM (§ 44)—"SET-OFF" —UNLIQUIDATED DAMAGES.

Unliquidated damages for breach of contract cannot be a "set-off" within the meaning of such statute, since a set-off must be in the nature of a debt.

5. PARTIES (§ 84)—NONJOINDER OF PARTIES —MODE OF OBJECTION.

Objection on account of nonjoinder of parties can only be availed of when raised by plea or demurrer.

6. DAMAGES (§ 210)—INSTRUCTIONS.

Where, in an action on a note in which a counterclaim is interposed, the jury are specifically directed as to damages according to the evidence, it is error to further instruct that they might also award him any other damage which they find defendant sustained, and which was directly caused by plaintiff's breach of the contract.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the National Handle Company against Carl Huffman on a note. From a judgment for defendant on a counterclaim, plaintiff appeals. Reversed and remanded.

Plaintiff, a corporation, commenced suit in the circuit court of Pemiscot county, against defendant, on a note executed by defendant and one C. L. Mitchell, by which they promised to pay to plaintiff or order $511.66, 18 months after date thereof, for value received, with 8 per cent. interest per annum from date, interest payable annually, and, if not paid, to be added to the principal. The note is dated August 1, 1904. Averring that the note is long since past due and unpaid, plaintiff prays judgment against Carl Huffman for the amount, with interest and costs. The defendant Huffman answered, admitting the execution and delivery of the note, "denying specially and generally each and every other allegation in plaintiff's petition contained." "For a counterclaim or set-off thereto" defendant states that the note sued upon in the case was given by the defendant and one C. L. Mitchell as a part of the purchase price of a certain sawmill, purchased from plaintiff by defendant and by said Mitchell for the purpose of manufacturing ash squares for plaintiff, in carrying out a certain written contract between defendant and said Mitchell on the one part and plaintiff on the other, entered into on the 25th of July, 1904. The contract is set out in full, and is also attached as an exhibit; and it is averred that, while defendant and Mitchell had performed on their part all the contract, plaintiff had wholly failed and refused to perform its part, it being set out in what particulars the failure occurred, and the defendant avers that by reason of the breaches of the contract made by plaintiff, he (defendant) is damaged in the sum of $7,000, for which and costs he asks judgment. As another defense, it is charged that the plaintiff is in an unlawful pool, trust, agreement, or combination with other persons, or corporations, whose names are unknown to defendant, to regulate and fix the price of the articles manufactured by it, contrary to the statute of this state, and that therefore plaintiff cannot maintain the action, defendant claiming the benefit of the provisions of article 1, c. 143, §§ 8925-8977, Rev. St. 1899 (Ann. St. 1906, pp. 4150-4156). The reply was a general denial.

Plaintiff introduced the note in evidence, and produced testimony to the effect that neither the note nor any part of it had been paid. An effort was also made to show that the plaintiff was in a trust or combination unlawful under the laws of this state. It may be said of that, however, in passing, that it entirely fails to sustain any such claim, and the trial court so instructed the jury. Defendant on his part thereupon introduced evidence as to the transactions with plaintiff under the contract. It was admitted that the defendant, Carl Huffman, and C. L. Mitchell were equal partners in the contract and business of the firm of Huffman & Mitchell. It was in evidence that, some time before the institution of this suit, Mitchell died at his place of residence in the state of Arkansas. There was no evidence in the case as to the defendant, Huffman, having taken out any letters of administration on the estate, as surviving partner, nor was there any evidence in the case as to the laws of Arkansas governing the matter of administration on partnership estates. The note in suit is dated at Caruthersville, Mo. The sawmill of the plaintiff was located in the state of Arkansas. The ash squares contracted for were contracted to be inspected and graded by an inspector of the plaintiff at its sawmill, were to be loaded by defendant's firm in railroad cars, and, after being loaded on the cars, were to become the property of plaintiff. It is not stated in the contract or evidence where it was entered into, but in the contract plaintiff, Huffman, and his partner, Mitchell, are designated as of the county of Mississippi, in the state of Arkansas, and the plaintiff as a corporation incorporated under the laws of the state of Ohio, and authorized to transact business in the states of Arkansas and Missouri. At the close of the testimony in the case plaintiff interposed a demurrer to the testimony of defendant, and asked an instruction from the court that the jury should find on the counterclaim in favor of plaintiff, for the reason that the testimony offered by defendant fails to prove any defense to plaintiff's cause of action. This was overruled, and plaintiff excepted.

The plaintiff asked several instructions, of which those given by the court were to the effect that, should their verdict be for plaintiff, it should be the face of the note, together with interest at the rate of 8 per cent. from the 1st of August. Another instruction was that the burthen of proof to make out his case by a preponderance or greater weight of evidence is upon defendant. Among the refused instructions, asked by plaintiff, the court was asked to instruct the jury that they could not consider the counterclaim for damages filed by the defendant, Huffman, therein, except so far as the damages, if any, shown by the evidence touching the counterclaim may be a set-off to the note sued for by plaintiff....