W. W. Kimball Co. v. Massey
| Decision Date | 17 July 1914 |
| Docket Number | No. 18680[212].,18680[212]. |
| Citation | 126 Minn. 461,148 N.W. 307 |
| Court | Minnesota Supreme Court |
| Parties | W. W. KIMBALL CO. v. MASSEY. |
OPINION TEXT STARTS HERE
Appeal from District Court, Wright County; E. A. Giddings, Judge.
Replevin by C. H. Massey against the W. W. Kimball Company. From judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.
Plaintiff replevied a piano in defendant's possession under a conditional contract of purchase. The defendant answered, setting up, as a counterclaim, a warranty of the piano by the seller, a breach of the warranty, notice thereof to the seller, a neglect to make it conform to the warranty, payment of a certain amount on the purchase price, and a readiness to return the piano, upon being repaid this amount, and demanding judgment therefor. He did not ask for a return of the piano. Held, that the answer stated a cause of action, and that such cause of action was a proper counterclaim.
The court did not err in receiving oral testimony of a warranty, the contract of purchase being substantially like the one considered, and held not to preclude such evidence, in French et al. v. Yale, 144 N. W. 451. Reed & Swift, of Minneapolis, and Stephen A. Johnson, of Buffalo, for appellant.
Latham & Pidgeon, of Minneapolis, for respondent.
Plaintiff replevied a piano which defendant had agreed to buy. Defendant did not ask for a return, but counterclaimed to recover back the installments paid, on the ground that the piano was not as warranted. Another counterclaim was also pleaded, but need not be mentioned, since no evidence was received thereon. The defendant recovered what had been paid. Plaintiff appeals from the judgment.
No motion for a new trial appears to have been made; hence no error assigned upon the charge of the court can be considered. Neither is the sufficiency of the evidence to sustain the verdict challenged by any of the assignments of error. The questions upon this appeal are therefore narrowed down to two: (1) Did defendant's first counterclaim state a cause of action? And (2) did the court err in overruling plaintiff's objection to the introduction of oral evidence of a warranty?
[1] This being an appeal from a judgment, the order overruling plaintiff's demurrer to the counterclaim may be reviewed, since under the present statute there is no appeal from such order. If the cause of action pleaded in the answer was not a proper subject of counterclaim in this action, the objection could be raised only by demurrer. If the so-called counterclaim did not state facts sufficient to constitute a cause of action, plaintiff could, by objecting to the introduction of evidence upon the trial, protect its rights without demurring. This was also done. The piano was in defendant's possession. Plaintiff held his contract securing the payment of the purchase price thereof. He had made certain payments, but alleges that he refused to make others, because plaintiff failed to make good a warranty made when the instrument was sold, and also that he was all the time ready and willing to return the piano, or rescind, if he was paid back what he had paid in reliance on the warranty. We think the counterclaim was connected with the subject of the action, under subdivision 1 of section 7757, Gen. St. 1913. The sale was conditional and executory, and upon a breach by one the other was entitled to rescind. If defendant was justified in rescinding for the breach of warranty, he was entitled to a return of the installments paid. That was all he asked by the counterclaim. The defendant did not seek to retain the possession, nor ask for the return of the piano. The provision that a counterclaim is proper when it is ‘connected with the subject of the action’ should receive a liberal construction. Goebel v. Hough, 26 Minn. 252, 2 N. W. 847;Hackett v. Kanne, 98 Minn. 240, 107 N. W. 1131; Wild Rice Lumber Co. v. Benson, 114 Minn. 92,113 N. W. 1. That a similar counterclaim may be interposed in replevin, under a statute substantially like ours, was held in Aultman Co. v. McDonough, 110 Wis. 263, 85 N. W. 980.
The plaintiff's demurrer to the first counterclaim was properly overruled. Likewise its objection to the introduction of any evidence on the ground that the counterclaim did not state facts to constitute a cause of action against plaintiff. The point here...
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