35 Kan. 93 | Kan. | 1886
Lead Opinion
The opinion of the court was delivered by
This action originated in a justice’s court. Subsequently, it was appealed to the district court, and there, upon the trial, the parties waived a jury and submitted the' case to the court, with the request that the court find the facts specifically and state its conclusions of law thereon. This was done. The facts found are substantially these: On February 25, 1884, Israel D. Risher, plaintiff below, executed to Herman Litzkie two notes for fifty-five'dollars, due in two and six months respectively, and bearing interest at twelve per cent, per annum from date; to secure the payment of these notes, Risher executed to Litzkie a mortgage upon a cow—the property replevied in this action — which provided, among other things, that if the indebtedness was not paid when due, the mortgagee might take the property and sell it at public or private sale. It was further provided therein that until default should be made, the property should remain in the actual possession of the mortgagor. Risher paid $61.68 upon the notes. On February 20, 1884, Risher and Litzkie entered into a contract whereby Litzkie agreed to furnish to plaintiff 115 head of cattle to be herded by the plaintiff during the herding season of 1884; Litzkie wholly failed to furnish any cattle to be herded under his contract, and Risher sustained damages by reason of the breach thereof in the sum of $85. On October 6,1884, after such damages had accrued to Risher, Litzkie took possession of the cow embraced in the mortgage, claiming the right so to do by virtue thereof. At this time, Risher notified Litzkie that on account of the damages which
Gardner purchased the cow with notice of Risher’s rights. His defense, or rather his claim, in the action was founded upon the notes and mortgage executed by Risher to Litzkie. Tf nothing was due upon the notes and mortgage, or if Risher
“When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counter-claim or set-off could have been sét up, neither can be deprived of the benefit thereof by the assignment or death of the other ; but the two demands must be deemed compensated so far as they equal each other.”
The judgment of the district court will be affirmed.
Dissenting Opinion
I do not concur. Under our statutes a set-off can only be pleaded in an action founded on contract. (Civil Code, § 98.) This was an action of replevin, which is in the nature of a tort, and is founded upon the wrong of the defendant and not upon contract. I think, therefore, that the adjudication of a claim between the plaintiff and defendant’s vendor in this action was erroneous. ■