Hay v. Short

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBLISS
PartiesJOSEPH HAY, Respondent, v. JAMES SHORT, Appellant.<sup>a1</sup>
Decision Date31 October 1871

49 Mo. 139

JOSEPH HAY, Respondent,
v.
JAMES SHORT, Appellant.
a1

Supreme Court of Missouri.

October Term, 1871.


Error to Sixth District Court.

H. C. Lackland, for appellant.

Where the amount proved on the counter-claim exceeds the sum found due plaintiff, the court may give defendant judgment for

[49 Mo. 140]

the balance. (Gen. Stat. 1865, ch. 171, § 2; id. ch. 165, §§ 12, 13; Nelson v. Johnson, 25 Mo. 430 et seq.; House v. Marshall, 18 Mo. 368-74; Grand Lodge v. Knox, 20 Mo. 433; Ogden v. Coddington, 2 E. D. Smith, 317, 323; 1 Van Santv. Pl 545, 569.)

Counter-claims embrace both set-offs and recoupments, as they were understood prior to the code. (Pattison v. Richards, 22 Barb. 146; Ramsey v. Smith, 6 How. Pr. 420; 9 Van Santv. Pl. 545.)

E. A. Lewis, for respondent.

I. Defendant's claim was not subject-matter for recoupment, since it does not appear to have grown out of the rent contract as developed in the pleadings. (Barb. Set-off, 26; Sedgw. Dam. 431; Grand Lodge v. Knox, 20 Mo. 433.)

II. Even were this a case of recoupment, defendant could not recover an excess over plaintiff's claim. (Waterm. Set-off, § 425; Grand Lodge v. Knox, supra;Batterman v. Pierce, 3 Hill, 171, 174.)


BLISS, Judge, delivered the opinion of the court.

This was an action for rents, the value of one-third of a crop of corn raised upon shares, and was tried upon a counter-claim for damages suffered by defendant from failure on the part of the plaintiff to keep up his fence as he had agreed. Defendant obtained judgment for $21, which was recovered in the District Court.

It appears that plaintiff, by a verbal demise, leased to defendant six acres of land in a field of sixty acres at a rent of one-third of the crop. A portion of the remaining part of the field was leased to another, but most of it was retained by the plaintiff. Adjoining the field was a pasture also occupied by plaintiff, in which were kept cattle, hogs, etc. The fence between the two fields was under his exclusive control, and defendant, by way of counter-claim, alleged that when he rented the land there was a good fence around the field sufficient to turn stock; that plaintiff, by the contract of rental, was to keep the fence in order, and was

[49 Mo. 141]

not to permit stock to come into the inclosure, but that he let down the fence and left it down so that his cattle and hogs came into the field, destroyed the crop, etc. Defendant upon the trial undertook to prove the contract in relation to the fence as well as the damages, and the court instructed the jury that they must find that the plaintiff, in the contract of rental upon which the suit was brought, agreed to keep up the fence and keep out the cattle, etc., in order to sustain the demand embraced in the counter-claim, and if they did so find they might give the defendant his damages, and if they amounted to more han what was due the plaintiff for rent they should give him a verdict for the balance. One of the objections to the judgment is based upon the alleged insufficiency of the evidence to sustain the agreement, yet there was evidence tending to prove this issue, and it is not for us to say after the verdict of a jury whether it was sufficient or not.

The other objections to the judgment go to the right of recovery, admitting the...

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9 practice notes
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...as a petition. Kinney v. Miller, 25 Mo. 576; Mark v. Cooperage Co., 204 Mo. 242; Lindsey v. Nagel, 157 Mo. App. 128; Hay v. Short, 49 Mo. 139; West v. Freeman, 76 Mo. App. 96; Hoffman v. Const. Co., 204 Mo. App. 539, 223 S.W. 815. (a) Without a cross-action, allowances to defendant must be ......
  • Graham v. Ringo
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 1878
    ...Lowell, 45 Mo. 381; Pickering v. Telegraph Co., 47 Mo. 487; Frazer v. Roberts, 32 Mo. 457; Richardson v. Farmer, 36 Mo. 35; Hay v. Short, 49 Mo. 139; 2 Wag. Stat., p. 1036, § 19, sub § 1, 5, 8, 9, 14, § 23. A judgment cannot be arrested as to some of the defendants and a final judgment e......
  • Stone v. Wendover
    • United States
    • Court of Appeal of Missouri (US)
    • May 16, 1876
    ...v. Naylor, 2 Duer, 678; Richardson v. Farmer, 36 Mo. 35; Jones v. Louderman, 39 Mo. 287; Kercheval v. King, 44 Mo. 401; Hay v. Short, 49 Mo. 139; Hapgood v. McKoon, 49 Mo. 77; Poe v. Dornec, 48 Mo. 441; 8 Ohio St. 293; Rowland v. Phalon, 1 Bosw. 43; Fugate v. Glasscock, 7 Mo. 577; Coll. on ......
  • Graham v. Allison
    • United States
    • Court of Appeal of Missouri (US)
    • February 8, 1887
    ...454; State v. White, 61 Mo. 441; Corpenny v. Sedalia, 57 Mo. 88; Sweet v. Maupin, 65 Mo. 65; Frazer v. Roberts, 32 Mo. 457; Hay v. Short, 49 Mo. 139. IV. By the failure to answer, the allegations of the bill stood admitted. With the clause of the will, and the provisions of the policies bef......
  • Request a trial to view additional results
9 cases
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...as a petition. Kinney v. Miller, 25 Mo. 576; Mark v. Cooperage Co., 204 Mo. 242; Lindsey v. Nagel, 157 Mo. App. 128; Hay v. Short, 49 Mo. 139; West v. Freeman, 76 Mo. App. 96; Hoffman v. Const. Co., 204 Mo. App. 539, 223 S.W. 815. (a) Without a cross-action, allowances to defendant must be ......
  • Graham v. Ringo
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 1878
    ...Lowell, 45 Mo. 381; Pickering v. Telegraph Co., 47 Mo. 487; Frazer v. Roberts, 32 Mo. 457; Richardson v. Farmer, 36 Mo. 35; Hay v. Short, 49 Mo. 139; 2 Wag. Stat., p. 1036, § 19, sub § 1, 5, 8, 9, 14, § 23. A judgment cannot be arrested as to some of the defendants and a final judgment e......
  • Stone v. Wendover
    • United States
    • Court of Appeal of Missouri (US)
    • May 16, 1876
    ...v. Naylor, 2 Duer, 678; Richardson v. Farmer, 36 Mo. 35; Jones v. Louderman, 39 Mo. 287; Kercheval v. King, 44 Mo. 401; Hay v. Short, 49 Mo. 139; Hapgood v. McKoon, 49 Mo. 77; Poe v. Dornec, 48 Mo. 441; 8 Ohio St. 293; Rowland v. Phalon, 1 Bosw. 43; Fugate v. Glasscock, 7 Mo. 577; Coll. on ......
  • Graham v. Allison
    • United States
    • Court of Appeal of Missouri (US)
    • February 8, 1887
    ...454; State v. White, 61 Mo. 441; Corpenny v. Sedalia, 57 Mo. 88; Sweet v. Maupin, 65 Mo. 65; Frazer v. Roberts, 32 Mo. 457; Hay v. Short, 49 Mo. 139. IV. By the failure to answer, the allegations of the bill stood admitted. With the clause of the will, and the provisions of the policies bef......
  • Request a trial to view additional results

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