Weinstein v. Rhorer

• Decision Date: 22 June 1934
• Parties: WEINSTEIN v. RHORER et al.
• Court: Kentucky Court of Appeals

73 S.W.2d 25

255 Ky. 179

WEINSTEIN v. RHORER et al.

Court of Appeals of Kentucky

June 22, 1934

Appeal from Circuit Court, Bell County.

Action by Herman Weinstein against Arthur Rhorer and others, in which defendants interposed a counterclaim and set-off. The jury found for plaintiff in the sum of $315, and for defendants in a like sum on the counterclaim, and, to review a judgment on the verdict, plaintiff moves for an appeal.

Motion for appeal sustained, appeal granted, and judgment reversed with directions.

Low &amp Bryant and Adrian Weinstein, all of Pineville, for appellant.

Arthur W. Rhorer and J. E. Sampson, both of Middlesboro, for appellees.

REES Chief Justice.

The appellee Arthur Rhorer rented office space in a building owned by Herman Weinstein in Middlesboro for a period of approximately nineteen years. The rental contract was apparently one by the year, and the last contract made between the parties expired April 18, 1930. Appellant notified appellee that he desired to end the tenancy, and due notice to that effect was given, but appellee refused to surrender possession of the premises. On April 21, 1930 Weinstein instituted forcible detainer proceedings before the county judge of Bell county, and the appellee was found guilty of forcibly detaining the premises.

The appellee Arthur Rhorer executed a traverse bond which the appellees E. D. Rhorer and F. J. Miller signed as sureties. The traverse was prosecuted to the Bell circuit court, where it was adjudged that Rhorer was guilty of forcible detainer and that he wrongfully occupied the premises from April 18, 1930, to October 7, 1930. Weinstein thereupon brought this action to recover damages on the traverse bond in the sum of $315. The defendants filed an answer, the first paragraph of which was a traverse. In the second paragraph the defendants alleged as a counterclaim damages for alleged failure on the part of the plaintiff to furnish janitor services to the defendant Arthur Rhorer during the period covered by the traverse bond. In the third paragraph the defendant Arthur Rhorer attempted to interpose as a set-off against Weinstein's claim upon the traverse bond damages caused by an alleged trespass. After alleging nonresidence and insolvency of Weinstein, he alleged that Weinstein broke into his office and rummaged and pried into and read his documents and private papers, to his damage in the sum of $1,000. Demurrers to paragraphs 2 and 3 were overruled. Upon the trial of the case, the court peremptorily instructed the jury to find for the plaintiff in the sum of $315, and submitted to the jury the issues raised by paragraphs 2 and 3 of the answer. The jury found for the plaintiff the sum of $315 and for the defendants in a like sum on their counterclaim and set-off, and from the judgment rendered on the verdict the plaintiff appeals.

The court properly overruled the demurrer to paragraph 2 of the answer, inasmuch as the counterclaim asserted therein grew out of and proceeded from the cause of action stated in the petition. Civil Code of Practice, § 96, subsec. 1; Duff v. Wilking, 203 Ky. 817, 263 S.W. 373. The plaintiff was seeking to recover from the defendant Arthur Rhorer double rent from the time he occupied the premises subsequent to April 18, 1930, and the claim asserted in paragraph 2 of the answer was liquidated and arose out of the...