49 Mo. 139 | Mo. | 1871
delivered the opinion of the court.
This was an action for rents, the value of one-third of a crop of corn raised upon shares, and was tried upon a counter-claim for damages suffered by defendant from failure on the part of the plaintiff to keep up his fence as he had agreed. Defendant obtained judgment for $21, which was recovered in the District Court.
It appears that plaintiff, by a verbal demise, leased to defendant six acres of land in a- field of sixty acres at a rent of one-third of the crop. A portion of the remaining part of the field was leased to another, but most of it was retained by the plaintiff. Adjoining the field was a pasture also occupied by plaintiff, in which were kept cattle, hogs, etc. The fence between the two fields was under his exclusive control, and defendant, by way of counter-claim, alleged that when he rented the land there was a good fence around the field sufficient to turn stock; that plaintiff, by the contract of rental, was to keep the fence in order, and was
The other objections to the judgment go to the right of recovery, admitting the answer to be true ; and first, it is claimed that defendant cannot recoup his- damages, because they are charged' to have arisen from a trespass by the plaintiff. It is unnecessary to say what rights the defendant would have in the premises if the fence upon which he relied for protection were around the close leased by him and were under his control, and there was no express contract in relation to it. In that case the question would arise, considered in Mayor, etc., v. Mabie, 13 N. Y. 151, whether the act complained of was a violation of an implied agreement for quiet enjoyment, and was a proper subject for counter-claim as “ arising out of the contract or transaction set forth in the petition,” or was a tort that could only be the subject of a separate action. But the answer does not charge a tort. It is true it is not full and clear as to plaintiff’s possession of the fence and his agreement, and should have been reformed on motion. But the objection was merely formal, the intent of the pleader could not be misunderstood, and it should be considered sufficient after verdict. The wrong complained of was a violation of the plaintiff’s agreement; it arose out of the contract upon which the suit is based, and entitled the defendant to relief by way of recoupment.
Under the old system this claim .for damages would have been set up by way of recoupment, and could not have been matter of set-off. But these terms are unknown to the code, and are both embraced in the word “ counter-claim.” Whenever the defendant claims that the contract upon which suit is brought has been violated by the plaintiff, and desires in the pending action to recoup the damages suffered by him in consequence, or whenever he would recover of the plaintiff a demand arising upon a contract extrinsic to that upon which the plaintiff’s demand is founded, in either case the new matter set put constitutes a counter-claim. (Holzbauer v. Heine, 37 Mo. 444; Pattison v. Richards, 22 Barb. 146.) The law, however, that gives or withholds the right to set up one or the other, is not cha.nged, and the import and scope thus given to the word “counter-claim” only become important in the present case in considering the nature and extent of the judgment to which, under the code, it entitles the defendant.
It is not disputed that before the adoption of the code a defendant who sought to recoup his damages was not entitled to an affirmative judgment. He could reduce or extinguish the plaintiff’s claim, and no more. (Waterm. Set-off, etc., § 425.) Still cases sometimes arose where a defendant was justly entitled to a greater amount of damages for breach of a contract than was due the plaintiff according to its terms. In that case it became necessary for him to abandon his recoupment and bring a separate action, and thus two suits were prosecuted, when, but for this limitation, one would have settled the claims of both parties. Such limitation did not then apply to the prosecution of a set-off, and now the statute has placed set-offs and recoupments upon the same footing. Section 2, chapter 171, Gren. ,Stat. 1865 (Wagn. Stat. 1051, § 2), authorizes judgments for
I do not find this question to have been raised in this court since the adoption of the code, although a remark was made upon the subject by Judge Ryland at the close of his opinion in House v. Marshall, 18 Mo. 368. But in New York (from whose statutes ours was copied), whenever the question has come up, the same view has been held as is herein given. (Ogden v. Coddington, 2 E. D. Smith, 317; Davidson v. Remington, 12 How. 310.)
The majority of the judges of the District Court sustained the plaintiff’s view of the question herein discussed; and the other judges concurring, its judgment is reversed and that of the Circuit Court affirmed.
I ought to remark ■ that there must have been a misprint or an error in the report of the language of Judge Holmes in Jones v. Moore, 42 Mo. 419, where he is made to say: “A recoupment or set-off is not of the nature of a defense or'plea in bar, but admits the cause of action and claims an allowance in diminution of the