Anthony v. Carp, 90 Mo. App. 387

90 Mo. App. 387 | Kan. Ct. App. | 1901

SMITH, P. J.

This is an action of replevin to recover the possession of twenty cows and twelve yearling calves. The petition alleged a special ownership, property interest and right of possession under a chattel mortgage conveying to plaintiff said cattle to secure the payment of a promissory note for $1,175; that the said mortgage provided that said cattle should remain in the possession of defendant until default should be made in the payment of the said note or the unreasonable depreciation in value thereof, or that the security become inadequate. The petition further alleged that all of said specified events had happened, whereby the plaintiff had become entitled to the possession of said cattle, which was denied to the plaintiff. Judgment was demanded-for possession and one hundred dollars damages for detention.

The answer contained (1) an admission of the execution of the note and mortgage coupled with a denial of all the other allegations of the petition; (2) the further allegation that the defendant, by reason of certain false and fraudulent representations — set forth at great length — made to him by plaintiff, he was induced to purchase said cattle of plaintiff and to give the said note and mortgage, which in consequence thereof were without any valuable consideration; that there was a subsequent agreement entered into between plaintiff and defendant whereby the sale and purchase was rescinded and the said cattle returned to the .plaintiff; that plaintiff and defendant made a further agreement under which said cattle were re-delivered to the defendant as agent of the plaintiff with authority to sell and dispose of the same to the best possible advantage; and that defendant accordingly kept, fed and cared for said cattle on his farm from the time of such delivery until they were taken away from him under the writ and removed to the State of Kansas where plaintiff resides. After other allegations, which it is unnecessary to here summarize, there was the further allegation that plaintiff had been requested to deliver up said note and mortgage for cancellation, which he had refused to do, and therefore judgment was prayed that plaintiff he compelled to bring said note and mortgage into court for cancellation, etc. And fox a further defense it was alleged (3) that by reason of the fraud and deceit practiced hy the plaintiff in the sale of said cattle to defendant, the latter had been greatly damnified, and that by reason of the care and attention given hy him to said cattle, involving the expense and cost of purchasing food for the same while in his possession prior to the date of the said rescission, with that thereafter incurred until the service of the writ, amounted to $215; and damages for loss of time as a direct result of said fraud and deceit in the aggregate sum of fifteen hundred dollars, for which judgment was demanded.

The plaintiff filed a motion to strike out that part of defendant’s answer outlined by us in the two preceding paragraphs on the double ground that the same stated no defense and was had for duplicity. This motion was sustained, and to which ruling of the court the defendant properly saved his exceptions.

There was a trial on the issues made hy the petition and the denial of the answer which resulted in judgment for the plaintiff, and the defendant appealed.

The first ground of the appeal which we are required to notice relates to the action of the trial court in sustaining the plaintiff’s motion to strike out those parts of the defendant’s answer, the substance of which we have briefly stated. By the second defense pleaded by the answer the defendant conceded that both the title and possession of the cattle were in the plaintiff. The only relief sought was in equity for the delivery up for cancellation of the note and mortgage. No equity of defendant appertaining to the property in controversy was pleaded in this part of the answer. No defense whatever to the action is claimed to have been thereby pleaded to the action. By this so-called defense the plaintiff’s action stood confessed. The court, in the exercise of its equitable jurisdiction was asked to make a decree which did not affect any interest in the property which was the subject of the replevin. And the same is true of the counterclaim pleaded in the third defense. Among the items of damage that are therein alleged to have resulted from the fraud and deceit is that of caring for and feeding plaintiff’s cattle between the time they were turned over to the defendant by plaintiff to be sold and disposed of, and that of the caption.

Eor this service it is likely that under the statute (Section 4228, Revised Statutes 1899; Heaps v. Jones, 23 Mo. App. 617) the defendant had an agister’s lien, which was available as a defense under the general issue. This lien entitled him to possession until its discharge (Revised Statutes, Section 4234) ; such right in the cattle could have been investigated and adjusted in this action. Workman v. Warder, 28 Mo. App. 1; Gregory v. Tavenner, 38 Mo. App. 627; Babb v. Talcott, 47 Mo. 343. The plaintiff as general owner had no right to take possession until he had discharged or at least tendered the amount of the agister’s lien. Montieth v. Printing Co., 16 Mo. App. 453; Dilworth v. McKelvy, 30 Mo. 154. Under the general issue, the defendant may show that the plaintiff is not entitled to the possession at the time of the institution of the action because of the existence of the agister’s undischarged lien thereon. Young v. Glascock, 79 Mo. 574, and cases there cited.

And under such general denial, where the property is not claimed nor the return thereof demanded, the defendant would be entitled to judgment for the return of the property and nothing more. Puller v. Thomas, 36 Mo. App. 105; Chemical Co. v. Nickells, 66 Mo. App. 678. It is thus seen that the facts pleaded in the third defense- tending to show an agister’s lien, disclosed an interest in the property involved in the suit and should have been therein ascertained and settled. Baldridge v. Dawson, 39 Mo. App. 527; Gregory v. Tavenner, 38 Mo. App. 627; Babb v. Talcott, 47 Mo. 343; Russe v. Hendricks, 75 Mo. App. 386; Barnes v. Rawlings, 74 Mo. App. 531; Pickett v. McCord, 62 Mo. App. 467; Campbell v. Roeder, 44 Mo. App. 324; Dilworth v. McKelvy, 30 Mo. 149; Boutell v. Warne, 62 Mo. 350; Lewis v. Mason, 94 Mo. 551. While the facts constituting the agister’s lien were needlessly pleaded in the third defense, they could not be stricken out on the ground that they constituted no defense.

As to so much of the counterclaim pleaded in such defense as related to the other items of damage, it is sufficient to say that as the claim did not appertain to any interest in the property, it could not be adjusted in the suit.

It is true as the defendant contends, that under our code of civil procedure (Section 605, Revised Statutes) the defendant may set forth hy answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both. But this provision in its application to the action of replevin, in the light of the adjudged cases to which we have referred, can not be construed as permitting defenses or counterclaims of the kind herein pleaded by the defendant. The cases decided'hy the appellate courts of this State, with one accord discountenance such pleading. The learned and industrious counsel for the defendant has supported his contention, both by his brief and orally, with a very ingenuous and able argument, but to which we are unable to agree. It seems to us, after all, that any inquiry into the question embraced in the defendant’s contention is foreclosed by the adjudications in this State.

The defendant at the trial offered evidence tending to prove the facts alleged in his two several defenses, which offers were by the court rejected. The action of the court in rejecting so much of said offers as tended to prove the facts showing the agister’s lien, or from which it could have been inferred, was, we think, erroneous. We are bound to presume that the defendant could have made the proof so offered by him. The tendency of which would have been to establish a special property or right to the possession thereof in the defendant, of which he could not be deprived by the plaintiff as general 'owner without first discharging his lien.

As we do not feel quite satisfied with the disposition made of this case by the trial court, we shall reverse the judgment and remand the cause.

All concur.