Stoner v. Swift

• Decision Date: 12 May 1905
• Docket Number: 20,625
• Citation: Stoner v. Swift, 164 Ind. 652, 74 N.E. 248 (Ind. 1905)
• Parties: Stoner v. Swift et al
• Court: Indiana Supreme Court

74 N.E. 248

164 Ind. 652

Stoner v. Swift et al

No. 20,625

Supreme Court of Indiana

May 12, 1905

From Laporte Circuit Court; John C. Richter, Judge.

Action by John D. Stoner against Theodore Swift and another.From a judgment for plaintiff for less than his claim, he appeals.Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Frank E. Osborn and W. A. McVey, for appellant.

E. E Weir, Philo Q. Doran and Elias D. Salsbury, for appellees.

OPINION

Monks, J.

Appellant brought this action against appellees to recover for wheat sold and delivered to them.The complaint was in two paragraphs, the first being a common count to recover the balance due on 324 bushels of wheat; and the second set up a special contract for the sale of 324 bushels of wheat at $ 1.02 per bushel, alleging a breach of said contract, and demanding judgment.Appellees answered by general denial, and filed a counterclaim.The counterclaim alleged a special contract for the sale by appellant of 600 bushels of wheat at $ 1.02 per bushel, upon which $ 164.64 had been paid, and that only 328 bushels and 25 pounds had been delivered; that by reason of the failure of appellant to deliver the remaining 272 bushels and 35 pounds, appellees had been damaged $ 157.52, which with the sum of $ 164.64 paid amounted to $ 322.16.Judgment demanded for so much as the court may find due for a breach of said contract.A trial of said cause by the court resulted in a finding and judgment in favor of appellant for $ 11.86.

It is insisted by appellant that appellees' counterclaim was insufficient, because the readiness of appellees to perform their part of the contract sued upon therein--that is to pay for said wheat on delivery--is not shown by direct allegation or otherwise; citing Magic Packing Co. v Stone-Ordean, etc., Co.(1902), 158 Ind. 538, 541, 542, 64 N.E. 11, and cases cited;Beard v. Sloan(1868), 30 Ind. 279;Smith v. Smith(1846), 8 Blackf. 208.

Section 353 Burns 1901, § 350 R. S. 1881, provides: "A counterclaim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for damages."

A pleading can not perform the office of both an answer and a counterclaim.Indiana, etc., Assn. v. Crawley(1898), 151 Ind. 413, 417, 418, 51 N.E. 466;Bird v. St. John's, etc., Church(1900), 154 Ind. 138, 149, 56 N.E. 129;Hadley v. Prather(1878), 64 Ind. 137, 139;Douthitt v. Smith(1880), 69 Ind. 463, 467;Blakely v. Boruff(1880), 71 Ind. 93, 96, 97.

It was said by this court in Bird v. St. John's, etc., Church, supra, at page 149: "The distinction between an answer and a counterclaim or set-off is an obvious one.The purpose of an answer is to defeat the action and bar recovery.A counterclaim or set-off, on the contrary, is a pleading by which the defendant states a cause of action in his own favor, and against the plaintiff.It does not purport to answer the complaint, or to set forth any facts which bar recovery upon it.It has none of the properties of an answer.It neither admits nor denies the allegations of the complaint.It does not confess and avoid them.Where a defendant succeeds upon an answer going to the whole complaint the only judgment the court can pronounce is that the plaintiff take nothing by his complaint, that the defendant go hence thereof without day, and, by virtue of the statute, that the defendant recover his costs.If a defendant wishes to obtain affirmative relief against the plaintiff, he must state his cause of action by way of counterclaim or set-off.It is settled beyond dispute that the same pleading can not be treated both as an answer and a counterclaim."

It is provided in § 350Burns 1901, § 347 R. S. 1881 that set-off and counterclaim may be pleaded as answers, but to be sufficient they must allege facts sufficient to constitute a cause of action against the plaintiff.Blue v. Capital Nat. Bank(1896), 145 Ind. 518, 520, 43 N.E. 655, and cases cited;Indiana, etc., Assn. v. Crawley, supra;Branham v. Johnson(1878), 62 Ind. 259, 263;Flanagan v. Reitemier(1901), 26 Ind.App. 243, 247, 59 N.E. 389;1 Works' Practice(3d...