98 Mo. App. 319 | Mo. Ct. App. | 1903
Lead Opinion
The transaction out of which this controversy arose may be stated in about this wise: The plaintiff sold, defendants a “corn harvester,” for the part of the purchase price of which the. note sued on was given, and at the same time warranted it to have no side draft, and that it would do good work. The suit, which is on said note, was begun before a justice of the peace; from there it was later on'removed by appeal to the circuit court where there was a trial resulting in judgment for defendants, and the plaintiff appealed.
At the inception of the trial the plaintiff objected to the introduction of any evidence by the defendants for the reason that they had admitted the execution of the note but had not filed, either before the justice or in that court, any statement of the counterclaim relied on by them as a defense io the action. This objection was by the court overruled and the propriety of that ruling is called in question here.
The evidence presented by the abstract shows that the defendants relied on a breach of the contract of warranty-claiming that the damages sustained by them in consequence of such breach were equal to- the amount of the plaintiff’s note and the interest that accrued thereon. The damages thus claimed by defendants constituted a counterclaim. Brown v. Weldon, 27 Mo. App. 251; West v. Freeman, 76 Mo. App. 96; Stephens v. Barber Supply Co., 67 Mo. App. 588; Gantt v. Duffy, 71 Mo. App. 91; Emery v. Railroad, 77 Mo. 339,
Where a defendant files a statement of a counterclaim for damages growing out of a breach of warranty, as here, in an action on a promissory note for a sum equal to the amount due on the note, his defense is not that of failure of consideration except in the sense that the counterclaim goes to the extinguishment of the note. And whether such counterclaim goes to the partial or total extinguishment of the note, the requirement of the statute just referred to is exactly the same; that is to say, that in either case a statement of it (the counterclaim) must be filed before the justice in order to make it available as a defense anywhere; and anything declared in Shepherd v. Padgett (decided at the October term, 1901) to the contrary is hereby overruled.
It results from this that the ruling of the trial court must be disapproved.
Some complaint is made in respect to the instructions, but these need not be noticed further than to remark that as the defendants had not filed a statement of their counterclaim before the justice, as required by the statute, evidence tending to prove it was improperly admitted, the defense was not available to them, so that the plaintiff was entitled to the peremptory instruction requested; and the action of the court in failing to give it was erroneous.
It follows that the judgment must be reversed and cause remanded.
Rehearing
The point was made in defendant’s brief that the abstract of the record proper did not show that the motion for a new trial was filed. This was overlooked by ns in the consideration of the case on the merits. He has again called onr attention to the matter in his motion for a rehearing.
An examination of the record has disclosed that the objection was well taken. No snch recitals anywhere appears in the abstract of the record proper, though it does appear from the bill of exceptions — but as said by us in Turney v. Ewins, 71 S. W. 543, the filing of it is a matter of record proper and can not be evidenced by the bill of exceptions. The evidence of the filing of it (the motion) must be found in the! abstract of the record proper. Nothing else will do. Kirk v. Kane, 71 S. W. 463; Hill v. Coombs, 93 Mo. App. 264; Crossland v. Admire, 149 Mo. 650; Lawson v. Mills, 150 Mo. 428; Warehouse v. Glasner, 150 Mo. 426.
Accordingly, the judgment heretofore ordered by us to be entered in the cause will be set aside. And as there appears to be no error patent upon the face of the record proper, the judgement of the circuit court, must be affirmed.
