Palmer v. Moyers

• Decision Date: 27 June 1927
• Docket Number: No. 16031.,16031.
• Citation: 298 S.W. 101
• Parties: PALMER v. MOVERS.
• Court: Missouri Court of Appeals

298 S.W. 101

PALMER v. MOVERS.

No. 16031.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Rehearing Denied July 11, 1927.

Certiorari Denied by Supreme Court, September 27, 1927.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by Gertrude L. Palmer against Kathryn E. Moyers, with counterclaim by defendant. Judgment for defendant and plaintiff appeals. Affirmed.

Ben T. Hardin and H. W. Durall, both of Kansas City, for appellant.

J. M. Lee and Harvey E. Hartz, both of Kansas City, for respondent.

WILLIAMS, C.

Action was brought in the circuit court of Jackson county by the appellant herein against the respondent. The action was to foreclose a chattel mortgage securing a note of $4,500, on the furniture, furnishings, and leasehold located at 912 Tracy avenue, in Kansas City, Mo. This property was known as the Winona Hotel.

A few months previous to the institution of the suit, defendant had traded the equity in her home at 4021 Montgall avenue, Kansas City, Mo., which was valued at $3,000, and certain chattels therein valued at $2,500, for this hotel. The difference in the equity and the chattels in the home therein contained was $4,500. This represented the note and chattel mortgage in question.

Defendant filed an answer and a counterclaim. In the counterclaim it was represented that certain false and fraudulent representations were made by plaintiff to the defendant as an inducement to buy the hotel. The counterclaim prays for damages in the sum of $10,000. The plaintiff filed a reply and answer to the counterclaim which denied generally the allegations in the answer and counterclaim. On these pleadings the case proceeded to trial.

The evidence shows that plaintiff and defendant were friends in Galena, Kan., before moving to Kansas City; that in June, 1925, defendant saw plaintiff at the Winona Hotel, which plaintiff was then operating. Defendant had been a commercial traveler for years and desired to get off the road. Plaintiff told defendant she would sell her this property, and they casually went through the hotel. No terms or price was talked of, and it seems the defendant at that time was not interested in buying. The latter part of August or beginning of September, 1925, plaintiff called at defendant's residence and invited defendant over to see the property. Defendant could not go for some reason, and that evening plaintiff and her husband called on defendant. During this call plaintiff exhibited to defendant figures showing the income, expenses, and profits from operating the Winona Hotel. The representation showed that the property was worth the sum of $10,000 and that they had been clearing $200 a month above expenses; that the hotel was well furnished, having silverware, linens, bedding, and blankets necessary for the operation of the hotel. After explaining these figures, the proposition was made whereby plaintiff would accept defendant's home on Montgall avenue at $8,000, subject to a $5,000 incumbrance, and the chattels including furniture, etc., in defendant's house, at $2,500; plaintiff would sell the hotel to defendant for $10,000 and would take back defendant's note for $4,500, secured by a chattel mortgage on the hotel property payable at the rate of $100 per month. The trade was thus consummated in the latter part of October. Defendant took possession of the hotel on November 2d.

The evidence on the part of the defendant which the jury found to be true was that there was practically no silverware, not sufficient linen, and very few bed sheets; that there were large numbers of vacancies, and that the income of the hotel was much exaggerated; that the operation of the hotel was much in excess of the amount received; and that the hotel had not been operated by plaintiff at a net profit of $200 a month over and above all expenses. Defendant defaulted in her payments on the note. A suit to foreclose the chattel mortgage was instituted and a receiver appointed to take charge of the property. The trial resulted in a verdict for plaintiff for the amount of her note with interest, and for the defendant on her counterclaim in the sum of $8,000. Motions for a new trial and in arrest of judgment were filed. A remittitur for $3,000 was entered by the defendant on her counterclaim, and the motions for a new trial and in arrest of judgment were overruled. Final judgment was rendered for the defendant for the difference between the amount allowed plaintiff and the amount allowed defendant on her counterclaim after the remittitur, which was the sum of $352.25. From this judgment plaintiff has appealed.

The first point made by appellant is that the answer of respondent cannot be considered as a counterclaim and appellant argues that by reason of the fact that the subject-matter in the counterclaim is not mentioned in plaintiff's petition, the court erred En allowing the jury to consider the counterclaim.

In Collins v. John Pfingsten Leather Co., 196 Mo. App. 611, loc. cit. 621, 622, 190 S. W. 990, 992, the court discussed the question very thoroughly, and in part said:

"It is held that under our Code the terms `setoff' and `recoupment' are included within the term `counterclaim' and the distinction between set-off and recoupment is now important only from the fact that the former must arise from contract and can only be used in an action founded upon contract, while the latter may spring from a wrong, provided it arose out of a transaction set forth by the claimant or connected with the subject of the action. (Gordon v. Bruner, 49 Mo. 570.) * * * At first, counterclaims were held not to be available in any action for a tort and, therefore, not in replevin, which sounds in tort. (Gottler v. Babcock, 7 Abb. [Prac.] [N. Y.] 392.) But this rule has been so far modified as to allow the interposition of a counterclaim in the full sense of the Code, whether arising on contract or based upon a tort, in an action of replevin, whenever such counterclaim or set-off is founded upon a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or whenever it is connected with the subject of the action."

We think this case controlling upon the question.

The case of McCormick Harvesting Machine Co. v. Hill, 104 Mo. App. 544, 79 S. W. 745, is cited with approval and bears out this doctrine. We rule this...