King v. Campbell

107 Mo. App. 496 | Mo. Ct. App. | 1904

ELLISON, J.

This action is set forth in a petition of two counts, each on a promissory note executed by defendant to plaintiff. The defendant answered by general denial and also set up a counterclaim. The verdict was for defendant on each count of the petition and in his favor for one dollar on his counterclaim. . Plaintiff filed a motion for new trial. Before that motion was passed on by the court he filed a motion for judgment non obstante veredicto. Then, before either of the motions were heard, he paid into conrt the one dollar found in defendant’s favor on his counterclaim. The trial conrt overruled the motions and plaintiff appealed.

Plaintiff’s position is that there were three verdicts in the case and it was stated in argument that there were, or should be, three judgments. He therefore contends that he had a legal right to pay off the judgment on the counterclaim .of one dollar and still appeal from the judgment against him on the notes. Defendant’s position is that there were three findings in one verdict and that there was but one judgment. And that plaintiff by paying that judgment could not appeal.

We do not see any reason or force in the position taken by plaintiff. By our statute, section 605, Revised Statutes 1899, a counterclaim arises, either out of the contract or transaction sued on by plaintiff; or, if the cause of action sued on is a contract, then the counterclaim may be based on another independent contract not connected with the one sued on. Crane v. Murray (decided this term).

Now, a counterclaim arising out of a contract or transaction sued on, may be of such nature and character that it can only exist by destroying, wholly or partially, the claim on which suit is brought. That is to say, establishing the counterclaim, to that extent, necessarily destroys the plaintiff’s claim. Such counterclaim is based upon the fact that the plaintiff has no demand against the defendant, at least in the amount claimed, upon which he ought to recover, for the reason that the counterclaim arose out of the transaction upon which his action is based.

In the case before us, the suit is on a contract evidenced by two notes and the counterclaim arises out of those notes, or, at least, it is connected with the transaction out of which the notes arose. The matter set forth in the answer as a counterclaim was that plaintiff and defendant were physicians and the notes were given for the purchase of a medical practice and good will* sold by plaintiff to defendant; that plaintiff did not have the particular practice which was the inducing cause of the purchase; that the notes were obtained by fraudulent ■ misrepresentations and were without consideration and that defendant had been damaged in the transaction in a large amount stated in the answer. The proof of such a 'counterclaim necessarily destroyed plaintiff’s case.' So that when the jury found for defendant the sum of one dollar on his counterclaim and judgment was so entered, it was an adjudication that plaintiff had no cause of action against defendant, but that defendant had a cause of action against the plaintiff.

It therefore follows, that when plaintiff paid the judgment it put an end to the entire controversy and that he has no right to appeal. For it is a rule often announced, that one can not accept of, or acquiesce in, a judgment and at the same time prosecute an appeal from it. Aull v. Trust Co., 149 Mo. l. c. 15; Cassell v. Fagin, 11 Mo. 207; State v. Lubke, 15 Mo. App. 166; Waddingham v. Waddingham, 27 Mo. App. 596; Rosenberger v. Jones, 48 Mo. App. l. c. 608; RoBards v. Lamb, 76 Mo. 192; Noah v. Ins. Co., 78 Mo. App. 370; Babbitt v. Corby, 13 Kan. 612.

The judgment is affirmed.

All concur.