Wahl v. Lockwood & Gasser
| Decision Date | 21 December 1928 |
| Citation | 227 Ky. 183 |
| Parties | Wahl v. Lockwood & Gasser. |
| Court | United States State Supreme Court — District of Kentucky |
2. Pleading. — That evidence heard on trial of cause of action asserted in cross-petition would be same as that on trial of cause of action asserted in petition is not sufficient to render cross-petition permissible, under Civil Code of Practice, sec. 96, subsec. 3.
3. Appeal and Error. — Judgment dismissing cross-petition, after sustaining demurrer thereto as asserting cause of action not affecting, nor affected by, original cause of action, as required by Civil Code of Practice, sec. 96, subsec. 3, must be affirmed, though proper procedure would have been motion to strike paragraphs of answer asserting cross-petition; right conclusion having been reached.
Appeal from McCracken Circuit Court.
WHEELER & HUGHES for appellant.
J.D. MOCQUOT for appellees.
Affirming.
A.C. Wahl asserted a cross-action against Lockwood & Gasser in a suit begun by the Brown Sheet Metal Works against him. A demurrer was sustained to it. Wahl declined to plead further, his cross-petition was dismissed, and he has appealed.
Wahl contracted with Lockwood & Gasser to erect for him a laundry building in the city of Paducah. Among other things to be done by Lockwood & Gasser under this contract, they were to erect on top of this building a steel framework to serve as support for a 10,000-gallon water tank, the estimated weight of which, when full, was 100,000 pounds. Wahl contends that in the erection of this framework Lockwood & Gasser used steel of smaller size and lesser strength than provided in the specifications, so that, when the tank was placed thereon and filled with water, this foundation sagged and gave other evidences of insufficiency. Thereupon Wahl employed the Brown Sheet Metal Works to remove this steel and to install in lieu thereof other and stronger steel, and the Brown Sheet Metal Works, having done the work and both Wahl and Lockwood & Gasser refusing to pay for it, sued Wahl for $571.12, which they allege was a reasonable charge for the materials furnished and the work done by them.
In the first paragraph of his answer, Wahl merely denied that he was indebted to the plaintiffs. In the second paragraph he admitted that he was indebted to them in the sum of $102.97, which he alleged he had heretofore offered to pay them, and which the Brown Sheet Metal Works had declined to accept. In the third paragraph of his answer, he set out the making of the contract with Lockwood & Gasser, that they had failed to construct the foundation for this tank in accordance with the specifications attached to the contract, that the foundation was insufficient, had begun to show signs of weakness, and to threaten to give way, and that thereupon, at the special insistence and request of Lockwood & Gasser, so Wahl says, the Brown Sheet Metal Works was employed and procured to furnish steel of sufficient size and strength to support the tank and to comply with the contract, and that they did so. Wahl alleged in his third paragraph that he did not know whether the charges were reasonable or not, but says he was advised that Lockwood & Gasser would contend they were not so. He alleged that all of the charges made by the Brown Sheet Metal Works were incurred by and on behalf of Lockwood & Gasser, and resulted entirely from their breach of their contract with him, and were made necessary solely by their breach thereof.
In the fourth paragraph of his answer, Wahl alleged that, after this building was completed, he held back and refused to pay to Lockwood & Gasser $500 of the contract price because of the use of these inferior beams in the foundation of this tank, which $500 he alleged was by agreement placed in the City National Bank of Paducah, Ky., to be applied to the satisfaction of the indebtedness of the plaintiff on account of the work on said tank foundation, or paid over to the party entitled to receive it, and that he had called on the bank to apply these funds to the satisfaction of the indebtedness to the Brown Sheet Metal Works, or to pay them to him that he might so apply them. Wahl in a fifth and sixth paragraph of his answer, set out other matters in dispute between him and Lockwood & Gasser, and Wahl prayed that the plaintiff's action be dismissed, and that Wahl's answer be made a cross-petition against the bank and against Lockwood & Gasser. The City National Bank, pleading to this answer and cross-petition, asked the court to direct it as to the disposition of the $500 in its hands, which the court declined to do. Lockwood & Gasser demurred to paragraphs 3, 4, 5, and 6 of this answer and cross-petition. The court sustained that demurrer and dismissed Wahl's cross-petition. The issue between the Brown Sheet Metal Works and Wahl was then tried out, and no appeal has been prosecuted from the judgment obtained by the Brown Sheet Metal Works; but Wahl has appealed from the judgment of the court dismissing his answer and cross-petition against Lockwood & Gasser.
The object of all trials is to discover the truth and to establish justice. In our efforts to do these things, we have adopted a Code of Practice. That Code recognizes a man's right to have his case heard and determined, if possible, without its being confused and commingled with any cause of action that another may have. The Brown Sheet Metal Works had that right in this case, but the defendant, Wahl, wished to try the controversy between him and Lockwood & Gasser at the same time that the controversy between him and the Brown Sheet Metal Works was tried. By section 96, subsection 3, of our Civil Code, there is a provision made for such; but, in recognition of the rights of a litigant to have his cause of action tried without its being confused with another, the Code provides that a defendant cannot file a cross-petition, except under two circumstances, which are: (a) When the cause of action asserted in such cross-petition affects the original cause of action; or (b) when the cause of action asserted in such cross-petition is affected by the original cause of action. Here is the plaintiff's petition, asserting its cause of action:
etc.
This stated a good cause of action in favor of the Brown Sheet Metal Works and against Wahl. In the claim of $517.12 so asserted, there are items, aggregating $102.97, which Wahl admits is for work and materials that are in no wise connected with his claim against Lockwood & Gasser. This $102.97 he probably paid to the Brown Sheet Metal Works before the trial, though the record does not show that; but on the trial nothing was said about it, no evidence was offered about those items, and the court instructed the jury peremptorily to return a verdict against Wahl for the balance of $468.15, which was done. This $468.15 is the basis of Wahl's contention that the court erred in sustaining the demurrer to paragraphs 3, 4, 5, and 6 of his answer, which he sought to make a cross-petition against Lockwood & Gasser. Wahl admits the Brown Sheet Metal Works furnished the material and did the work on his building set out in the items that made up this $468.15; hence he will have to pay them the reasonable value of those items, and that obligation of his cannot be affected by any claim he has against Lockwood & Gasser. Indeed, so far as their claim is concerned Wahl must pay the Brown Sheet Metal Works, regardless of what may be the outcome of the claim he sought to enforce against Lockwood & Gasser.
So it is clear that Wahl's claim against Lockwood & Gasser does not affect the claim of the Brown Sheet Metal Works against him, and that leaves for our determination the other question: "Does this $468.15 claim of the Brown Sheet Metal Works against Wahl affect the claim of Wahl against Lockwood & Gasser?" To help us understand the situation, we think it best to state here just what items composed the claim for which Wahl was seeking to assert a cross-action against Lockwood & Gasser. His claim consists of four items:
1. Work done by Brown Sheet Metal
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...for value of the notes for their collection. To like effect was it so held and the rule announced in the case of Wahl v. Lockwood & Gasser, 227 Ky. 183, 12 S.W. (2d) 321. Under repeated decisions of this court, it is held that such claims as were presented in the Call and the Wahl Cases, su......