Scarritt Estate Co. v. J. F. Schmelzer & Sons Arms Co.

• Decision Date: 27 March 1905
• Citation: 110 Mo. App. 406,86 S.W. 489
• Court: Missouri Court of Appeals
• Parties: SCARRITT ESTATE CO. v. J. F. SCHMELZER & SONS ARMS CO.

86 S.W. 489

110 Mo. App. 406

SCARRITT ESTATE CO. v. J. F. SCHMELZER & SONS ARMS CO.

Kansas City Court of Appeals. Missouri.

March 27, 1905.

ASSIGNED CLAIMS — ACTIONS—COUNTERCLAIMS —SET-OFF—DEFENSES — UNLIQUIDATED DEMANDS—STATUTES—CONSTRUCTION.

1. In an action on an assigned claim for rent, claims for damages caused by the delay of plaintiff's assignor in completing its contract with defendant for alterations and repairs of the building rented, though arising out of the contract for alterations and repairs, not being claims existing in favor of defendant and against plaintiff, as required by Rev. St. 1899, § 605, defining a counterclaim, were not available as such.

2. Rev. St. 1899, § 4487, provides that if any two or more persons are mutually indebted in any manner whatsoever, and one of them commence an action against the other, one debt may be set off against the other, although such debts are of a different nature; and section 4488 declares that, in actions on assigned accounts, the defendant shall be allowed every just set-off or other defense which existed in his favor at the time of his being notified of such assignment. Held, in an action on an assigned claim for rent, that claims for damages against plaintiff's assignor for delay in performing a contract for repairs, for negligence in the performance thereof, for water and gas furnished, and for injury to defendant's business, not being "debts," but mere unliquidated damages, were not available under such sections either as set-offs or "other defenses."

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by the Scarritt Estate Company against the J. F. Schmelzer & Sons Arms Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harkless, Crysler & Histed, for appellant. Scarritt, Griffith & Jones, for respondent.

BROADDUS, P. J.

The plaintiff sues defendant on an assigned account for one month's rent for the use of a certain building in Kansas City, Mo. The answer admits the indebtedness, and sets up as defenses various claims as set-offs and counterclaims. It alleges that on or about the 17th day of February, 1903, it entered into a contract in writing with the Nathan Scarritt estate, which was transferred to and assumed by plaintiff as a part of the assets of said estate, and the performance of which the plaintiff guarantied and assumed to carry out; that said contract provided for alterations and betterments of the rented premises, which defendant occupied as a general store; that it was agreed in said contract that the work provided for should be carried on and prosecuted with reference to the convenience of defendant in conducting its business, so far as it could be reasonably done, which alterations were to be made under certain specifications, one of which was as follows, to wit: "Skylights, roof conductors and metal work around outside of third story to be put in good condition," etc. It is alleged that the work was performed in an unworkmanlike manner and left in bad condition; that by reason thereof the water that fell upon the roof of the building overflowed said conductors, which were insufficient to carry it off, and ran down the walls of the building, causing them to become damp, thereby damaging its goods in said store to the amount of $500. The second count is a claim for water furnished in and about the construction of said work, which it is alleged was used by plaintiff's assignor, and for which it was plaintiff's duty to pay defendant. The amount claimed is $75. The third count is for gas used during the construction of the alterations, furnished to said assignor and to plaintiff. Amount claimed, $92. The fourth charges that by reason of the unnecessary delay of the work, during which time the building and goods therein were left exposed, and in consequence of such delay, plaintiff was compelled to hire a guard to protect them at a cost of $405. The fifth count is for injury to defendant's business caused by unnecessary delay in the work of alterations. The amount claimed being $1,000. On the trial, defendant introduced the contract mentioned. C. J. Schmelzer testified that he had heard in court on that day for the first time that the Scarritt Estate Company, plaintiff's assignor, unincorporated, had anything to do with the transaction; that the repairs and alterations were made under said written contract with said assignor. He was then asked to describe the character of the building, etc., whereupon plaintiff's counsel objected to the question on the ground that it was "incompetent, irrelevant, and immaterial, under the pleadings," and insisted that defendant "should first show an assumption of the contract by plaintiff." The defendant's counsel then stated that: "Defendant desires to state to the court and counsel that the defense offered under this answer will be limited to a defense against plaintiff's action. We will not insist, even though we might do so, for any judgment over and against, but simply rest on the proposition of attempting to defeat plaintiff's cause of action." Thereupon the court refused to permit defendant to proceed further until it showed that plaintiff had assumed the contract read in evidence. At this stage of the case, plaintiff was permitted to introduce the certificate of its incorporation. After the introduction of the certificate mentioned, defendant's counsel stated: "I now desire to offer testimony to sustain all of the claims set up in the counterclaim for the sole purpose of showing that we do not owe that amount sued for by plaintiff, independent of any question of assumption." The court refused to permit defendant to introduce its proposed testimony. The court instructed the jury to find for plain...