Small v. Speece

• Decision Date: 28 April 1908
• Citation: 131 Mo. App. 513,110 S.W. 7
• Parties: SMALL v. SPEECE.
• Court: Missouri Court of Appeals

110 S.W. 7

131 Mo. App. 513

SMALL v. SPEECE.

St. Louis Court of Appeals. Missouri.

April 28, 1908.

REPLEVIN — SET-OFF AND COUNTERCLAIM — ACTIONS IN WHICH REMEDY IS AVAILABLE.

The counterclaim, based on fraud in the sale, for surrender and cancellation of defendant's notes given in payment of the piano, for which plaintiff brings replevin, for default in payment, being one arising out of the "transaction" or the "subject of the action," and so, under Rev. St. 1899, § 605 (Ann. St. 1906, p. 635), a proper matter for counterclaim, may be preferred in the action of replevin, provided the action is instituted in a court having equity jurisdiction; but not where it is instituted in a justice court.

Appeal from Circuit Court, Stone County; John F. Moore, Judge.

Action by N. R. Small against W. Speece. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

A. W. Lyon, for appellant. J. T. Burgess, for respondent.

GOODE, J.

Respondent purchased from appellant's agent the piano which is the subject-matter of the present case in replevin. The action was begun December 18, 1905, before a justice of the peace, and was afterwards appealed and tried anew in the circuit court. The sale of the piano occurred September 4, 1905, the purchase price being $350, of which $100 was paid in cash, and five notes of $50, due at successive periods and secured by a chattel mortgage on the piano, were given for the balance. The mortgage provided that, on default in payment of any part of the debt, appellant might declare the whole debt due and payable and take possession of and sell the property, according to the terms of sale stipulated in the mortgage. The first note matured December 4, 1905, and, default having been made in the payment of it, the property was replevied in the present action, and turned over by the constable to appellant. The complaint is in the usual form for such actions when instituted before justices of the peace, but the answer, which also was filed before the justice, sets up a novel defense. It first denies appellant was entitled to the piano, and then proceeds to set out the facts of the purchase on which respondent relies for a defense. He admits the purchase from appellant's agent, says he desired to buy a Steinway piano, but the agent, wishing to sell the one in controversy, represented to respondent and his wife that the piano sold, which was a McPhail instrument, was as good a piano as a Steinway in make, tone, and harmony, would suit them as well, and would cost from $200 to $300 less. The answer avers the agent knew at the time he made such representations they were false and fraudulent, and respondent, relying on them, was induced by them to purchase the piano in controversy for the price of $350; that he paid in cash the sum of $100, and executed the notes secured by a mortgage on the piano for the deferred payments. It is next averred the piano was not as represented in tone, volume, or harmony, was not equal to a Steinway piano, as the agent well knew, and as respondent and his wife discovered a few days after the piano was delivered; that respondent immediately notified appellant by letter he did not want the piano, and offered to pay the freight on it to Springfield, Mo., appellant's place of business; that appellant informed respondent he would send the agent to examine the piano and see what was wrong with it, but the agent never appeared. In view of the foregoing facts, it is alleged respondent was damaged in the sum of $100 by the false and fraudulent representations recited, and he prayed judgment for the return of the piano until his damages were paid, and his notes returned and canceled. At the trial in the circuit court appellant introduced in evidence the five notes, the chattel mortgage securing the same and the constable's return, showing he had taken the piano from the possession of respondent and delivered it to appellant. In defense appellant introduced evidence to prove he and his wife, who, in the main negotiated the purchase, were induced to buy the piano by the representation of appellant's agent that it was equal to a Steinway piano, which was the kind respondent desired in make, tone, volume, and harmony, when the agent knew the representation was false. Evidence was put in to prove the inferiority of the piano in those respects, and that, as soon as respondent and his wife became aware of its inferiority, they demanded a rescission of the sale, offering to pay the expense of reshipment to Springfield, and to allow appellant $25 on the price. Some correspondence was put in evidence in which this offer was made by respondent or by his wife for him. Appellant's letters in reply did not definitely decline the proposal, but insisted, rather, on the high quality of the piano, and said the agent would be in Monett, where respondent lived, in a short time, and attend to the matter. The agent did not arrive, but after the first note fell due this action was instituted. The testimony for appellant was that the piano was an excellent one, and no doubt some of the testimony tended to prove it was equal to the Steinway. The agent so swore, but denied representing to respondent it was as good as a Steinway, and said he merely told respondent and his wife it would suit them as well and was cheaper. As to these questions there was contradictory evidence for the jury to consider, provided the defense attempted in the answer will lie to respondent's action. Appellant was entitled under the mortgage to possession of the piano after a default in payment of part of the debt, unless, on...