53 Mo. 199 | Mo. | 1873
delivered the opinion of the court.
This action was brought to enforce a mechanic’s lien.
The petition charges, that the defendant Boss is indebted to plaintiff in the sum of $79.32, for materials furnished by plaintiff to said Boss, the particulars of which are filed : that said materials were furnished for a house erected under a contract with said Boss, (describing the house and lot on which it is situate); that said Boss was the contractor of defendant Smallwood for the erection of said house, for which the materials were furnished, and that said Smallwood was the OAvner and proprietor of said house and lot; that the indebtedness accrued on the 18th day of November, 1867; that on the 4th day of January, 1868, plaintiff gave notice to said Smallwood, that he held this claim against said property, setting forth the amount and from whom due; that on the 17th day of March, 1868, plaintiff filed Avith the clerk of the Circuit Court of Jackson County, a just and true account of the demands claimed after all just credits had been given, and a true description of the property on which the lien was intended to apply, with the names of the contractor and owner of the property, which was verified by the oath of plaintiff; a certified copy of all which was filed Avith the petition.
Judgment is then prayed against said defendant, Boss, for the amount of the account and interest, and that plaintiff’s lien be enforced against the property named, &c.
The defendant Smallwood appeared and filed his demurrer to the petition, which being overruled, he by leave of the court filed an answer.
In his' answer he says, that he has no knowledge, or information sufficient to form a belief, as to AVhether the plaintiff furnished the timber sued for or not. He denies, that plaintiff ever, at any time, gaim him notice of his claim against Boss, as stated in the petition, and denies that plaintiff’s claim was filed in the clerk’s office as directed by the statute.
The defendant then, for afurtlier answer and counter-claim, states, “that on the 29th day of Oct. 1867, he and said D. M. Boss entered into a contract in writing, which is herewith
The second defense or counter-claim set up by the answer and above copied, was on the motion of the plaintiff stricken out. The grounds of the motion to strike out this counterclaim were, 1st. That it constituted no legal defense to the action, and was inconsistent with the previous defense set up in the previous part of the answer. 2nd. The liability of the guarantor is contingent, and cannot be pleaded as a set-off. 3rd. There is no mutuality of indebtedness between plaintiff and defendant Smallwood.
The court sustained this motion, and struck out from the record said part of said answer, and the defendant excepted.
A trial was afterwards had and judgment rendered against the defendant Ross, for the debt named in the petition, and subjecting defendant Smallwood’s house, named in the petition, to sale for the payment of .'the judgment.
This motion being overruled, the said defendant excepted, and has appealed to this court.
The only matter complained of by the appellant in this court is, that the court below erred in striking out the counter-claim pleaded by defendant Smallwood, which constituted the second ground of defense on the part of said defendant. It is insisted by the respondent, that this second defense or counter-claim, set up by the defendant, is inconsistent with the first part of the answer, and therefore properly stricken out. “ The defendant may set forth by answer as many defenses .and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable or both.” (Wag. Stat., 1010.) It is further provided, that •“ different consistent defenses may be separately stated in the same answer.” The question now is, is this counter-claim set up by the defendant inconsistent with the former averments in the answer within the meaning of this statute? I think it is not. The answer first states, that the defendant has no knowledge, or information sufficient to form a belief, as to whether the material mentioned in the petition was furnished by plaintiff to the said D. M. Ross; and then the answer denied, that plaintiff at any time gave notice to defendant, that he held said claim against said property. Can these allegations, and the allegations made in that part of the answer, stricken out, both be true ? If they can, they are not inconsistent within the meaning of the statute; that they may both be true, does not admit of an argument; there is nothing inconsistent in the fact, that plaintiff did not give the defendant notice of his claim, or that he never furnished the lumber charged for, and the fact that plaintiff guaranteed, that the work to be done in building the house should be well done and done in the time specified ; both of these facts may be lit
Second — “ The counter-claim mentioned in the last section
In the case under .consideration, if the action as against defendant Smallwood is to be considered an action founded on the contract by which the lumber and' material was sold to Eoss, then Smallwood can by the statute set up as a counterclaim any cause of action also growing out of av contract, which existed at the commencement of the action, in his favor and against the plaintiff. If on the other hand the cause of action, as against defendant Smallwood, grows out of the remedy given plaintiff by the statute to enforce a lien against the property, because' the plaintiff has furnished material, which has been used in the erection of, and now constitutes a part of, Smallwood’s house, then as the counterclaim is for a breach of the contract to build or erect the same house, it is connected with the subject of the action, and in either case may be pleaded as a counter-claim, or defense as counter-claim to the action.
The counter-claim in this case was not pleaded with as much certainty and particularity of averment as is desirable in technical pleadings, but we think it is in substance good, and ought not to have been stricken out. The judgment will therefore be reversed.
the judgment will be reversed and the cause remanded.