Townshend v. Minneapolis Cold-Storage & Freezer Co.

• Decision Date: 27 April 1891
• Citation: 46 Minn. 121,48 N.W. 682
• Court: Minnesota Supreme Court
• Parties: TOWNSHEND v MINNEAPOLIS COLD-STORAGE & FREEZER CO.

46 Minn. 121

48 N.W. 682

TOWNSHENDvMINNEAPOLIS COLD-STORAGE & FREEZER CO.

Supreme Court of Minnesota.

April 27, 1891.

(Syllabus by the Court.)

1. When a reply sets up and asks affirmative relief upon a cause of action different from that alleged in the complaint, it is, if it is to be regarded only as the basis for affirmative recovery, and not a defense to matter in the answer, a departure in pleading.

2. If counter-claim may be set up in a reply, it can be only to defeat a recovery on a couter-claim in the answer, and not for an affirmative judgment on it.

3. There can be no counter-claim or set-off to a mere defense.

4. Matter pleaded expressly as a counter-claim, though not proper as such, may, if it constitute a defense to a claim in the opposite pleading, be available as a defense.

5. Under the common-law doctrine of recoupment, a party against whom a claim is made upon a contract may abate or bar such claim by proof of damages sustained by him by the other party's breach of the contract.

6. Thus where, in an action in replevin, the defendant justifies the detention upon a lien claimed for storing the property, the plaintiff may, in order to defeat the claim of lien, allege and prove damages sustained by him to as much as or more than the amount claimed to be due for storing.

Appeal from district court, Hennepin county; LOCHREN, Judge.

C. J. Cahaley, for appellant.

Merrick & Merrick, for respondent.

GILFILLAN, C. J.

The action is by plaintiff, as owner, to recover possession of 1,400 barrels of apples; the complaint demanding judgment for the delivery of the apples, and damages for the detention thereof. The answer claims a lien on the apples as warehouseman, for storing them at an agreed price per barrel per month, amounting to $633, and also a lien by agreement between it and defendant for freight charges on the apples paid by it to the railroad company which had transported them on receiving them, at the request of plaintiff, the amount so paid being $887.27, of which plaintiff has paid it $596.16; and also a lien amounting to $4.42 for two items of services on the apples, -the amount of said liens unpaid being $928.53; and it claims the defendant is entitled to possession under the liens, and it asks that the action be dismissed. The reply admits the agreement for storage, and the fact of storage, except of 118 barrels for one month; admits the payment of the freigt charges by defendant; but denies any agreement for a lien on account thereof; and alleges that plaintiff has repaid defendant all so paid; and denies all other new matter in the answer; and then the reply proceeds, “The plaintiff alleges, by way of counter-claim to the claim of defendant as alleged in his said answer;” and then sets forth what are, in effect, allegations of incompetency and negligence on the part of defendant in the storing and keeping of the apples, in consequence whereof 500 barrels were lost, and the remainder injured, to plaintiff's damage of $1,750. The reply then demands judgment as in the complaint demanded, and for the sum of $1,750 and interest. At the trial the court granted defendant's motion for judgment of dismissal on the pleadings. From the order refusing a new trial, it appears that the court ordered judgment because it regards the part of the reply designated a “counter-claim” to be a departure in pleading, and that disregarding the reply, so far as it was a departure, the defendant was entitled to judgment on the facts in the answer admitted by the reply. Treating that part of the reply as a departure, the decision of the court would be correct. We suspect, though it does not appear in the record, that it was in the court below insisted by the plaintiff merely that this matter in the reply was proper as the basis for the recovery of affirmative relief by plaintiff. In that view it would certainly be a departure in pleading, for the matter thus pleaded does not support nor fortify the cause of action set forth in the complaint, but constitutes an entirely distinct and independent cause of action. We do not determine whether, in any case, a plaintiff may set up a counter-claim or set-off in his reply. If it can ever be done, it cannot be for the...