194 Ky. 826 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
- The appellant, Lyric Piano Company, is a corporation doing business in Cincinnati, state of Ohio. The appellee, Grace Purvis, lives in Kenton county, Kentucky, in February, 1917, she purchased of appellant company a piano at the price of $450.00, payable in installments of three and five dollars per week. After having paid more than $200.00 on the piano she defaulted in the- payments and was in arrears something more than $100.00. The collector of the company called to see her on numerous occasions and she agreed to go to the offices and make a new contract for the payment of the balance due on the piano. She did enter into a new arrangement with the company by which she was to pay a certain lump sum and was then to pay the remainder in installments. She failed to comply with this contract, but a few days thereafter forwarded by mail to the company in Cincinnati a check for $3.80. Being unwilling to accept the check the company sent its representative to return the check to Mrs. Purvis.
Oil the first trial of the case before a jury the appellee, Mrs. Purvis, recovered $450.00 damages for the' alleged assault, but the jury gave the piano company the amount of its claim $228.00. A new trial being awarded the case was again tried, the verdict being for appellee Purvis in the sum of $350.00, and on this verdict the judgment from which this appeal is prosecuted was entered, adjudging Mrs. Purvis entitled to recover of the piano company the sum of $350.00 on her counterclaim. The motion and grounds of the company for new trial were overruled and it prosecutes this appeal. The only question that need be considered by us is whether in a suit on a contract, such as the appellant company instituted against Mrs. Purvis to recover on the contract and notes for the sale of the piano, the defendant can present in a counterclaim or set-off an unliquidated claim for damages arising out of an independent tort, which was not a part of the transaction out of which the original suit arose. We have held in the case of Bates v. Reitz, 157
There is another error of such importance as would have justified the trial court in peremptorily instructing the jury to find for the plaintiff. Although the defendant, Mrs. Purvis, alleges in-her set-off that the plaintiff company was a nonresident and that she had no adequate remedy at law, these allegations were controverted of record, thus putting her to the proof. As no proof was adduced upon this subject the plaintiff was bound to fail as to the set-off, for we have distinctly held that before such defendant will be permitted to collect his claim in this way, he must show that it would be impossible to collect it in any other way,- and, further, that there is some substantial obstacle in the way of collecting his damage in an independent action. Bates v. Reitz, supra.
When the defendant failed in support of her set-off to prove that she had no adequate remedy at law, the trial
For these reasons the judgment is reversed.
Judgment reversed.