30 Neb. 406 | Neb. | 1890
This cause comes to this court on error from the district court of Lancaster county. The plaintiff in that court in and by his petition alleged the making, execution, and delivery to him, by the defendant, of three, several promissory notes, two for $200 each, and one for $210, dated February 8, 1886, and due, respectively, April 8, May 8, and June 8, 1886, and demanding judgment in the sum of $576, with interest.
The defendant, in and by his amended answer, paying no attention to the allegations of the petition, nor troubling himself as to any distinction between defense,;set-off, and counter-claim, alleged that on the 28th day of December, 1883, the plaintiff, by his deed, duly executed and delivered, leased to the defendant lot 14, in block 42, in Lincoln, for a term commencing the 1st day of January, 1884, and ending December 31, 1889, for the consideuition of $8,100, to be paid by the defendant to the plaintiff in installments of $135 on the first business day of each and
“ For value received, I hereby relinquish to C. C. Burr all my right, title, and interest in the within lease, reserving right to remove stock within fifty days from date hereof, Burr to have right to go on with improvement in meantime. April 30, 1886.”
That the word “improvement” used in said release means the taking out of the rear end of said building and the construction to said building of the said addition and no other matter or thing; that the word “stock” used in said release means the defendant’s said goods and chattels, then used and employed by him in his said retail business; that o'n or about the 4th day of May, 1886, and while the defendant was occupying the said lot and tenements thereon, and so engaged in his said business, and thereafter up to the 14th day of June, 1886, the said plaintiff, in violation of the defendant’s right to the peaceable possession and quiet enjoyment of the said premises, so to occupy the same, and in disregard of the covenants of said assignment, did wrongfully, against the protest of the defendant, enter upon said premises and remove the roof on said building, and wrongfully, and against the protest of the de
The plaintiff replied to the above answer of the defendant, in which he denied that the plaintiff on the 30th day of April, or at any other time, desired or intended to build an addition to the storeroom mentioned in said counter
There was a trial to a jury, with a verdict and judgment for the plaintiff. After unsuccessful motion for a new trial, the defendant brings the cause up on error.
Before filing his reply, the plaintiff moved the court for an order striking from the defendant’s answer and counter
This assignment involves the entire answer and counterclaim of the defendant. Section 100 of the Code provides that “The defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off as' he may have. Each must be separately stated and numbered, and they must refer in an intelligible manner to the cause of action which they are intended to answer;” and section 101, as follows: “The counter-claim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and 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.”
It will be remembered that “the contract or transaction, set forth in the petition as the foundation of the plaintiff’s claim,” was the giving of three several promissory notes
The language of the corresponding section of the Code of New York is identical with that of our own, and those of most of the Code states, and, without citing the cases, I assume that, under the construction given the Code by the
The principle decided in the case of Loomis, Campbell & Co. v. The Eagle Bank of Rochester, 10 O. St., 327, appears to me quite applicable to the case at bar. In that case, to state it shortly, E. Gilbert & Co., of Rochester, in May, 1855, sold to Loomis, Campbell & Co., of Cincinnati, one thousand kegs of blasting powder, at $3.20 per keg delivered on board at Rochester. Five hundred kegs were delivered on board as contracted, and Loomis, Campbell & Co., being advised forthwith, returned a negotiable note at six months from date of shipment, for the contract price of the 500 kegs, but the other 500 kegs were never shipped. In August, following, the note was discounted by the bank for G. & Co., one of the discount committee being aware of the terms of the sale and of the fact that the last lot of 500 kegs had not been shipped. The note was not paid and suit was brought thereon by the bank against L., C. & Co., who set up, by way of counter-claim, damages for the nondelivery of the 500 kegs of powder. The bank having obtained judgment in the trial court, upon an error in the supreme court, it was held, (1) That the stipulations as to the two lots of powder are to be treated as distinct and several agreements, and not as one entire contract; (2) that a claim for damages for the non-delivery of the last lot, cannot be set up as a counter-claim to an action on the note given for the first lot, brought by the indorsee for value and before maturity, even though he had notice of the breach of the second contract at the time of his purchase. This case was followed by the same court in the late case of Myers v. Croswell, 45 O. St., 543.
Upon looking into the record before us, it appears that upon the 8th day of February, 1886, the defendant was
The question then arises, In what manner' ought the plaintiff to have taken advantage of the want of a sufficient defense, counter-claim, or set-off to the cause of action set up in his petition? The usual course in such cases has doubtless been to demur to defendant’s pleading, but I have made a long and fruitless search, in the wilderness of cases and text-books, for satisfactory reasoning or authority on that point, as applicable to our Code. Section 109 of the Code provides that “the plaintiff may demur to one or more of the defenses set up in the answer, stating in his
In this view of the law it may well be doubted that demurrer would have lain to the counter-claim in the case at bar. Under neither of the six specific grounds of demurrer set out in the 94th section, would demurrer lie to this counter-claim, considered as an independent petition. It does state facts sufficient to constitute not one only but two causes of action; my objection to it being that such causes of action are not “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.”
Under the practice formerly prevailing in equity, where
The case of Kurtz v. MaGuire, 5 Duer, 660, was, in some of its features, much like the case at bar. The complaint stated a sale and delivery by the plaintiff to the defendant of liquors at an agreed price of $290.20, and claimed a balance of $208.06. The answer denied that he had received the quantity of liquors stated, or that they were worth, or that he agreed to pay the price named, and averred that they were worth about $200 and no more. It then proceeded thus : “And this defendant further says that on or about the 20th of October, 1856, the said plaintiff, without the knowledge or consent of the defendant, took and appropriated to his own use 87-|- gallons of whisky belonging to this defendant, of the value of $2.75 per gallon, which this defendant claims to set off against the plaintiff’s claim herein, and also five gallons of gin worth the sum of $1.50 per gallon, and this defendant denies that he is indebted to the plaintiff in any sum or amount; wherefore he demands that the complaint be dismissed. The plaintiff moved to strike out this part of the answer as “irrelevant and redundant,” because it is not matter constituting a counter-claim or a defense, either tolal or partial. The general term held that the matter moved to be stricken out did not give a right of set-off, not being a demand arising on contract; and that it did not constitute a counter-claim, because it does not arise out of contract nor out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor is it
It must be admitted that in the case at bar the matter stricken from the answer is no more irrelevant nor immaterial than that which is left; but this objection could scarcely be urged by the defendant; nor does the Code (see. 125), which provides that redundant, scandalous, or irrelevant matter, when inserted in any pleading, may be stricken out on motion, require that all matter of that character be included in the motion.
I conclude, therefore, that there is not sufficient reason, nor is there any authority which I am able to find which would justify us in holding that the court erred in sustaining the motion to strike the matter from the answer. The action originated in the county court and was thence appealed to the district court by the defendant, which facts, not appearing from the pleading, or briefs of counsel, were not referred to in the statement. It also appears that after the appeal was perfected, the defendant, in the absence of the plaintiff and without- notice, moved the district court to dismiss the appeal, which motion was allowed and the appeal dismissed at the cost of the defendant, and the cause remanded to the county court for further proceedings, as though no appeal had been taken. And then two days thereafter, and at the same term, the plaintiff filed his motion in said court for an order reinstating said appeal therein for the reason that the same was so dismissed without the plaintiff’s consent, and contrary to law ; which motion was allowed, the said first order was set aside and vacated, and the appeal reinstated. "Which said last order and judgment of the court is the ground of the second error assigned.
The Code, at sections 1011 to 1015, makes ample provisions applicable to cases where the appellants or both parties fail, or neglect, to perfect the appeal, but there is no provision for the voluntary dismissal of an appeal by the
The brief of counsel on the part of the plaintiff in error, in so far ás it is not devoted to the points above considered, is confined to the discussion of the verdict, its insufficiency under the evidence, and its illegality. Neither the assignment of error involving one of the instructions of the court, nor the one alleging that the verdict is contrary to the sixth paragraph of the instructions, is discussed or presented in the brief; neither is the one of errors of law occurring at the trial. I here copy the verdict:
“We, the jury, * * * do find that there is due from the defendant to the plaintiff upon the cause of action set forth in his petition the sum of $671.25, and we further find that there is due from the plaintiff to the defendant upon his cause of action and defense the sum of $200. We therefore find that there is due from the defendant to the plaintiff a balance amounting to the sum of $471.25, which we assess as the amount of his recovery.”
This was evidently a compromise vei’dict.
There was a great deal of sharply conflicting testimony. The defendant himself testified that he was absent from the city Monday, June 14, 1886; that returning Tuesday morning following he found the tin roofing torn off of the store, and it having rained the night before, the two stories and the basement of the store were flooded with water and the goods damaged, in his opinion, to the amount of five or six hundred dollars. He also testified that it continued to rain more or less during the entire day of the 15th. Pie also testified that his stock of goods shortly before this date was of the value of six thousand dollars. He was subjected to a cross-examination, in which his replies to
.On the part of the plaintiff, James Tyler testified that he was the superintendent in charge of the work of making the improvements upon the store in question; that the main roof of the old building was removed some time after the 21st day of June, 1886'; that the part of the roof just over the elevator was removed prior to that time; that the shaft of the elevator was built of four corner posts and was enclosed with | flooring and had sliding doors. On cross-examination he testified that he was on the building once or twice every day during the week commencing Monday, the 14th day of June; that during that week none of the roof was or had been removed, except the roof immediately over the elevator, and that the roof was broken in the back part where the rear wall had been taken down; that he saw the workmen commence taking off the roof on Tuesday, the 22d day of June. The theory upon which this evidence was introduced,
At the trial, and before any witness was sworn, the plaintiff objected to the introduction of any evidence on the part of the defendant in support of his answer, for the reason that it did not contain facts sufficient to constitute a set-off, counter-claim, or any other defense. We often see this proceeding in bills of exceptions, but I do not remember any case where effect was given iit. Where a petition, and so, also, doubtless, a cross-petition, setting up a counterclaim, fails to state facts sufficient to constitute a cause of action, the defendant' in the one case and the plaintiff in the other, waives nothing by failing to make objection either by answer or demurrer, but this objection, as well as that the court has no jurisdiction of the action, may be taken at any stage of proceeding. (See Code, sec. 96.)
By taking the verdict of a jury, the admitted claim of the plaintiff was cut down from $671.25 to $471.25 by a cross-bill which contained no legal counter-claim. The defendant now asks for a new trial on the ground that plaintiff’s claim was not cut down eiiough. I think that it would be both illogical and idle to grant it.
The judgment of the district court is
Affirmed.