Lead Opinion
delivered the opinion of the court.
1. It is contended by plaintiff’s counsel that cross-bills have been abolished by statute; that the affirmative relief which the defendants sought against the plaintiff is not germane to the original bill; and that the facts thus alleged in the answer are not pleaded as a counterclaim in equity, for which reasons the trial court erred in entertaining the cross-bill and in granting relief based thereon. Cross-bills have been abolished, except in an action at law, where the defendant is entitled to relief arising out of facts requiring the interposition of a court of equity and material for his defense, when he may, upon filing his answer therein, also as plaintiff file a complaint in equity in the nature of a cross-bill, which shall stay the proceedings at law; and the case thereafter shall proceed as a suit in equity. Section 391, B. & C. Comp. Our statute regulating the practice in suits in equity contains the following provision: "The counterclaim of the defendant shall be one upon which a suit might be maintained by the defendant against the plaintiff in the suit; and in addition to the cases specified in the subdivisions of Section 74, it is sufficient if it be connected with the subject of the suit.” Section 402, B. & C. Comp. In construing the section last mentioned it was held in Dodd v. Dodd,
It is argued by plaintiff’s counsel that, though the contract does not, in express terms, specify the time within which the improvements were to have been made, the rules of law applicable to the interpretation of such agreements imply that the work should have been done within a reasonable time, which had fully expired long prior to the commencement of this suit, and that the defendants’ failure to keep the demised premises in a healthful condition, constituted such breaches of the agreement as to justify the plaintiff’s action in taking advantage of the clause of the contract which permitted her, in case of such default, to revoke the option to purchase the premises, and, having done so, the trial court erred in refusing to grant the relief prayed for in the complaint. In a note to Section 1297 of Pomeroy’s Equity Jurisprudence (3 ed.) it is said: “Equity distinguishes
The reduction of $25 a month which the plaintiff made to the defendants on account of the rent when she leased the storeroom and basement to them did not, in our opinion, form the consideration for the stipulation to make the specified improvements. The defendants severally testified tliat they were prepared to pay the plaintiff the sum of $25,000 within the 60 days first limited therefor, and would have done so, but, at her request, they accepted a lease of the premises for the term of five years. It appears that several buildings have been erected on the lot, the rent from which was to be paid to the plaintiff until the deed was delivered to the defendants. By executing the lease to them the plaintiff surrendered her right to $1,000 a year, the interest on the remainder of the purchase price at 4 per cent per annum, which, with the reduction in the rent, is equivalent to a diminution of $108.33 a month. Whether or not the value of the plaintiff’s occupation of her home, and the money which she received from tenants for the use of rooms in her buildings, were equal to the relinquishments indicated, do not appear from the testimony; but we believe the receipt of such rents and the possession of the building which had for many years been her residence constituted the consideration for executing the lease in question. “Where the length of the lease,” says Mr. Justice Lewis, in Wilson v. Owens, 1 Ind. T. 163 (38 S. W. 976), “is fixed by the agreement, but the time within which the improvements are to be made is not
It follows that the decree is affirmed.
Affirmed.
Rehearing
Decided July 28, 1908.
On Petition for Rehearing.
delivered the opinion.
Petition denied. Affirmed : Rehearing Denied.