Ritchie v. Hayward

• Citation: 71 Mo. 560
• Parties: RITCHIE v. HAYWARD et al., Appellants.
• Decision Date: 30 April 1880
• Court: United States State Supreme Court of Missouri

71 Mo. 560

RITCHIE

v.HAYWARD et al., Appellants.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Hannibal Court of Common Pleas.--HON. JOHN T. REDD, Judge.

REVERSED.

James Hayward for appellants, cited R. S., § 3522; Pomeroy on Remedies, (1 Ed.) 756, § 737; Ib., 784, § 764; Ib., 810, § 783; Ib., 793, §770; Woodruff v. Garner, 27 Ind. 4; Glenn & Hall Manfg. Co. v. Hall, 6 Lans. 158; Tinsleyv. Tinsley, 15 B. Mon. 457; Xenia Bank v. Lee, 7 Abb. Prac. 389; Chamboret v. Cagney, 2 Sweeny (N. Y.) 378; Thompson v. Kessel, 30 N. Y. 383; Gordon v. Bruner, 49 Mo. 570; Bitting v. Thaxton, 72 N. C. 546; Starbird v. Barrons, 43 N. Y. 200.

Geo. M. Harrison for respondents, cited Scheunert v. Kaehler, 23 Wis. 523.

HOUGH, J.

This was a suit to recover the value of 600 gunny sacks alleged to have been wrongfully converted by the defendants to their own use. The defendants admitted that the sacks came into their possession, and that they had not returned the same, and set up by way of counterclaim that the plaintiffs, at the time named in the petition, agreed to sell and deliver to the defendants, on board a steamboat at Muscatine, Iowa, for transportation to Hannibal, Mo., which was then the defendants' place of business, 1,046 1/2 bushels of choice peach-blow potatoes in gunny sacks, at the price of sixty cents per bushel, the said sacks to be returned by the defendants to the plaintiffs; that, in consideration of said agreement, and relying upon the honesty and good faith of the plaintiffs, the defendants then and there paid to the plaintiffs, in advance, the sum agreed to be paid for said potatoes, to wit: $627.90; that the potatoes delivered by the plaintiffs under said contract were much inferior in quality to the potatoes paid for and agreed to be delivered, and were delivered in the same sacks, to recover the value of which the present suit was brought; that, by reason of the failure of the plaintiffs to comply with their contract, the defendants had been damaged in the sum of $141, for which sum they prayed judgment.

That portion of the defendants' answer setting up a counter-claim was, on motion, stricken out by the court, on the ground that a counter-claim founded upon contract could not be pleaded to an action founded on a tort. This ruling of the court has been assigned as error. The counter-claim allowed by statute 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 arising on contract, any other cause of action arising also on contract and existing at the commencement of the action. R. S., § 3522.

The counter-claim pleaded by the defendants, if it be such as the statute recognizes, must fall within the first class. If the facts stated by the defendants be true, they certainly have a cause of action against the plaintiffs. It is not, however, a cause of action arising out of any contract set forth in the petition, for no contract is therein set forth. The facts set forth in the petition are that the...