Wilkerson v. Farnham

• Decision Date: 31 October 1884
• Parties: WILKERSON, Administrator, v. FARNHAM et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 672

WILKERSON, Administrator,

v.FARNHAM et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Pettis Circuit Court.--HON. J. P. STROTHER, Judge.

AFFIRMED.

E. J. Smith and W. S. Shirk for appellants.

(1) The court erred in admitting and excluding testimony. It was competent to prove by Tucker the value of the stable, and that the same and the damage for being kept out of possession of the lot sold to defendants, was not included in or settled in the note. A note is only prima facie a settlement of prior dealings, and the contrary may be shown in action between the original parties to it. The reply was a general denial, and it was error to receive the testimony of Goodwin as to a contract different from that relied on by defendants. Defendants had no notice of any such defense to their claim. There was no evidence to support the court's addition to defendants' first instruction, nor plaintiff's four instructions. (2) When a party agrees to sell and convey, and then refuses, the purchaser may recover for lost profits on his bargain, such as enhanced value of the land, etc. Kirkpatrick v. Downing, 58 Mo. 32, and cases cited; Newark Coal Co. v. Upton, 22 Am. Law Reg. 483. (3) The defense relied on here, viewed either as set-off or recoupment, is competent, for it arises on contract and grows out of the same matter for which the note sued on was given. Gordon v. Bruner, 49 Mo. 570.

John Montgomery, Jr., and B. G. Wilkerson for respondent.

(1) The circuit court did not err in its several rulings to the effect that all that part of the answer relating to the tearing down and removing the stable from the lot described in said deed, did not state sufficient facts to constitute any defense. The facts so stated in said answer are not a defense as a set-off, because they set up a claim for unliquidated damages, neither are they good as a counter-claim. They do not constitute a “cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action. And they do not constitute a cause of action arising on contract.” (2) The second instruction asked by defendants was properly refused. The answer made no claim for rental value. (3) The fourth instruction asked by plaintiff, was properly given. And there was no error in the admission of the testimony of the witness, Goodwin.

MARTIN, C.

This is an action on a promissory note in the sum of $325, dated July 15, 1877, wherein the defendants, under the firm name of Farnham & Gilman, promised to pay to the order of G. R. Smith the amount aforesaid, for rent of a stable and yard for the past year. It bore interest at the rate of ten per cent per annum and was indorsed with certain credits amounting to about $30. As the points involved in this case arise out of the answer which is somewhat unusual in its form and import I will set out the material parts of it in the language of the pleader.

“And for further answer defendants say that on the 25th day of April, 1876, defendants bought of said G. R. Smith the undivided three-fourths of the following described real estate. (Here follows the description). That by the terms of said sale to and purchase by defendants they were to have had and should have had possession of said premises on said April 25, 1876, but same was in possession of one Tucker, a tenant of said Smith, who refused to surrender the same, and kept and held it till the first of September of that same year. That when said Smith saw that he could not give defendants said possession, as he was bound to do, he then offered defendants as a compensation for said possession during that time, that they should have and retain said stable so reserved in said deed, which defendants agreed to accept, and which defendants say was worth, as it then stood on said ground, $350; but defendants say when said Tucker did give said premises up on September 1st, said Smith forthwith took and removed said stable and carried it away so that defendants were deprived of the same.

And defendants say that they were, at the time of said purchase, engaged in the business of keeping a livery stable, and had given up another stable they had lately occupied, and bought said property of said Smith to use for said purpose and business, and to continue said business, having then on hand a large stock of horses, carriages, etc., and having then a well established business, all of which was all the time well known to said Smith. Then when said parties found out that said Smith could not deliver possession of said premises to defendants, April 25, 1876, in order to enable said defendants to do some business, said Smith built a small stable and some sheds divided off into stalls, and enclosed a wagon yard on certain lots just adjoining that above described and owned by said Smith and rented and agreed to rent the same to defendants for the term of five years, at $25 per month. That defendants did not get possession of said small stable and sheds till July 4th, on account of said default of said Smith, during which time they had to hire their own horses kept and store their carriages, buggies and vehicles. That the note here sued on was given under these circumstances for the rent of said small stables, sheds and wagon yard.

That when defendants got possession of the ground so bought by them from said Smith, which was September 15th, 1876, they forthwith set about to erect thereon a suitable stable and barn wherein to conduct and carry on their said business and erected and completed the same without any unavoidable delay, and only got the same completed so they could occupy it on December 1st, 1876, during all of which time they labored under great inconvenience in having to do business in a building, stable and sheds unfit and too small for the same. That after defendants so got into their own stable said Smith represented to them that he had a chance to sell said small stable, sheds and yard with the grounds on which they were, and asked defendants to surrender the same and release him from his contract whereby he had contracted they should hold the same for five years, and defendants having, while in possession of the said small stable, sheds and wagon yards, made considerable improvements on the same in the way of front and back platforms to...