The McCormick Harvesting Machine Company v. Crawford

• Decision Date: 02 February 1903
• Citation: 72 S.W. 491,98 Mo.App. 319
• Parties: THE McCORMICK HARVESTING MACHINE COMPANY, Appellant, v. C. B. CRAWFORD et al., Respondents
• Court: Kansas Court of Appeals

72 S.W. 491

98 Mo.App. 319

THE McCORMICK HARVESTING MACHINE COMPANY, Appellant, v. C. B. CRAWFORD et al., Respondents

Court of Appeals of Missouri, Kansas City

February 2, 1903

Rehearing Granted 98 Mo.App. 319 at 323.

Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Reversed and remanded.

Rieger & Rieger and O. D. Jones for appellant.

(1) The defense attempted can not be made unless pleaded in writing or orally, and noted on the docket by the justice. "In trials before a justice of the peace in the absence of anything to the contrary, the defendant is presumed to plead the general issue." Reed v. Snodgrass, 55 Mo 180; Bank v. Williamson, 61 Mo. 259. (2) Under the general issue, the defendant "may give in evidence any matters showing that the plaintiff never had any cause of action." 2 Greenleaf Ev., sec. 135. (3) Here the cause of action was confessed and defendants undertook to avoid it, by a defense that must be pleaded. Frisby v. Rittman, 66 Mo.App. 418; Stephens v. Supply Co., 67 Mo.App. 587; West v. Freeman, 76 Mo.App. 96. Defendant filed no answer pleading "guaranty and warranty" of the machine and its failure. It devolved on defendants to show the machine was worthless for the purpose intended. Compton v. Parsons, 76 Mo. 455. Plaintiff's third instruction refused was error.

Campbell & Ellison for respondents.

(1) This appeal should be dismissed and the case stricken from the docket for the reason that the appellant's abstract of the record does not show: First. That appellant filed any affidavit of appeal, or that any appeal was ever asked for or granted. Second. That any bill of exceptions was preserved or filed in the case. Third. That any judgment was entered against appellant. (2) Almost all the defenses to the action of assumpsit have been made under a general denial. In the United States it remains for the most part in its former relaxed state; and accordingly where it has not been otherwise regulated by statute, the defendant, under the general issue, may give in evidence any matters showing that the plaintiff never had any cause of action; such as payment, duress, want of consideration. Greenleaf on Evidence, sec. 135; Wilt v. Ogden, 13 John 56; Stephen on Pleading, p. 179-182; Feeney v. Chapman, 89 Mo.App. 371. (3) Where a cause of action once existed but is terminated by some matter which has subsequently transpired, such new matter must be especially pleaded, but where the cause of action never existed, the appropriate answer is a denial of material allegations. Greenway v. James, 34 Mo. 328; Madison v. Nes. Pac. Co., 60 App. 608. (4) Where no defense is pleaded, defendant is presumed to plead the general issue. Reed v. Snodgrass, 55 Mo. 180. (5) A counterclaim is a cause of action, and where no part of purchase price of machine was paid, defendant could have no cause of action against plaintiff. The defense was--that machine never did do the kind of work for which it was sold--therefore they were never liable on the note; therefore, a cause of action against them never existed and the defense need not be specially pleaded. Authorities above cited.

OPINION

SMITH, P. J.

--The transaction out of which this controversy arose may be stated in about this wise: The plaintiff sold defendants a "corn harvester," for the part of the purchase price of which the note sued on was given, and at the same time warranted it to have no side draft, and that it would do good work. The suit, which is on said note, was begun before a justice of the peace; from there it was later on removed by appeal to the circuit court where there was a trial resulting in judgment for defendants, and the plaintiff appealed.

At the inception of the trial the plaintiff objected to the introduction of any evidence by the defendants for the reason that they had admitted the execution of the note but had not filed, either before the justice or in that court, any statement of the counterclaim relied on by them as a defense to the action. This objection was by the court overruled and the propriety of that ruling is called in question here.

The evidence presented by the abstract shows that the defendants relied on a breach of the contract of warranty--claiming that the damages sustained by them in consequence of such breach were equal to the amount of the plaintiff's note and the interest that accrued thereon. The damages thus claimed by defendants...