No. 5379; No. 3029 C. A. | Colo. | Jan 15, 1908
delivered tbe opinion of tbe court:
In September, 1902, appellant brought an action in a justice court of Pueblo county against tbe appellee, and caused a writ of attachment to be issued and certain bundles of merchandise to be levied upon. No service was bad upon tbe defendant in that action. Tbe constable who levied upon tbe goods placed tbe same in tbe bands of tbe plaintiff for safe keeping. Tbe plaintiff then caused the suit to be dismissed and converted tbe goods to bis own use. Defendant in that action, appellee here, then instituted this action in tbe justice court. Judgment was obtained in that court against the defendant therein and an appeal was taken to tbe county court. It was stipulated in that court that tbe defendant was guilty of the conversion of tbe goods, and that their value was $153.38; that, if the defendant should be entitled to interpose bis counter-claim as a set-off, tbe amount thereof should be $99.38. Tbe county court disallowed tbe counter-claim, and error is assigned be
The Code of Civil Procedure, § 57, provides that:
“A counter-claim may consist of a cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff’s claim or defendant’s defense, or connected with the subject of the action.” . ■
“If a transaction is set forth as the foundation of the plaintiff’s demand, the counter-claim must arise out of that transaction.” — Pomeroy’s Remedies and Remedial Rights, § 742.
Here, the transaction was the unlawful conversion of the goods, and the counter-claim, to be a valid set-off, must grow out of that. An antecedent debt cannot be set off against the damages arising from the tort. — Shafer v. Empire L. Co., 55 N. Y. Supp. 104; Reamer v. Morrison Express Co., 67 S.W. 718" court="Mo. Ct. App." date_filed="1902-04-01" href="https://app.midpage.ai/document/reamer-v-morrison-express-co-8262948?utm_source=webapp" opinion_id="8262948">67 S. W. 718; 6 Current Law 1444; Hanson v. Byrnes, 104 N. H. 762. .
And herein is the case of Warren v. Hall, 20 Colo. 508" court="Colo." date_filed="1895-01-15" href="https://app.midpage.ai/document/warren-v-hall-6562575?utm_source=webapp" opinion_id="6562575">20 Colo. 508, cited by. appellant, distinguished. There the counter-claim grew out of the same transaction alleged in the complaint as the foundation of plaintiff’s cause of action.
It appears to be fundamental that a demand founded on contract cannot be a set-off to damages proved in an action for the conversion of personal property. — "Waterman on Set-off, §138; Moore v. Davis, 11 Johnson 144; Lane et al. v. Bailey, 47 Barber 395; Donahue v. Henry, 4 E. D. Smith 162.
This action having been brought in a justice court, section 2644 Mills’ Ann. Stats., which provides
In that case the Illinois statute covering proceedings in a justice court, from which ours was taken, was considered, and it was therein determined. that ‘ ‘ a claim arising from contract cannot be set-off against an action for conversion of goods.” So it is apparent that the court committed m error in disallowing the counter-claim of appellant.
The only other error that appellant assigns is in the following words, namely, there “is manifest error in the following particular, to wit: * * * second, the rendition of final judgment in said cause and in the findings contained in said judgment. ’ ’
In the stipulation hereinbefore alluded to, it was agreed that if the court “shall find that in the commission of the conversion complained of, defendant was guilty of either malice or willful deceit, or that the same was willful and attended by circumstances of fraud or malice or wanton or reckless disregard of plaintiff’s rights, then in either of said events the judgment to be entered herein shall be in substance and form the same as rendered by the justice who tried the cause below. ’ ’
The court so found, and rendered the same judgment as had theretofore been rendered by the justice, namely, for the value of the goods, $153.38, and $100.00 as exemplary damages.
Under the assignment of error above quoted, appellant desires that we review the findings and judgment of the court as to the allowance of exem
Perceiving no reversible error assigned in this record, the judgment of the county court will be affirmed. Affirmed.
Chief Justice Steele and Mr. Justice Goddard concur.