286 P. 248 | Kan. | 1930
The opinion of the court was delivered by
The North American Finance Corporation
With his answer Henry Cannavan filed a cross petition setting up a cause of action in the nature of a set-off in tort, alleging that plaintiff had willfully and maliciously slandered him and his business
Two separate demurrers were filed by plaintiff, one to the amended answer of defendant and the other to the cross petition setting up charges of slander. The court overruled the demurrer to defendant’s answer but sustained the demurrer to his cross petition. Defendant appeals from the ruling sustaining the demurrer to the cause of action for slander.
That ruling was based upon the ground that the complaint of slander was a matter between Henry Cannavan and the plaintiff alone, and that Mamie Cannavan, the other defendant in the case, is in no way interested in it. The demurrer was rightfully sustained. There is a lack of mutuality necessary to the maintenance of the defenses pleaded, as one defendant cannot set up a counterclaim or set-off existing in his favor alone. The suit, as we have seen, was brought against both defendants. The cross petition of Henry Cannavan avers that plaintiff had slandered him and no claim is made that Mamie Cannavan, the other defendant, is interested or concerned’ in the cause of action for the alleged tort. It has been decided that, “In an action upon a verified account against two partners for an indebtedness of the partnership, a cross demand by one of the partners individually for damages to her caused by an unrelated tort of the plaintiff, cannot be used as a set-off or counterclaim against the plaintiff’s action.” (Crockery Co. v. Cleaver, 104 Kan. 642, 180 Pac. 273.) In the opinion it was said:
“Causes of action which the code permits to be united, other than to enforce liens, are those which affect all parties to such cause of action, and cross petitioners are plaintiffs in effect. [Citing a number of cases.]” (p. 645.)
“It will thus be seen that while the grievance of one of these defendants, Mrs. Hodgson, may be the subject matter of a meritorious separate lawsuit against the plaintiff, the want of mutuality between her and her codefendant prevents consideration of her individual grievance in this action against her partner and herself on plaintiff’s verified account for goods sold and delivered to them.” (p. 646.)
See, also, Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961; State, ex rel., v. Addison, 76 Kan. 699, 92 Pac. 581; Ruby v. Baker, 106 Kan. 855, 190 Pac. 6; Dunn v. Mortgage Co., 113 Kan. 169, 213 Pac. 655; Roberts v. Donovan, 70 Cal. 108.
Another ground of complaint is of the ruling of the court appointing a referee to try the issues in the case. Defendants objected to the referee, insisting that they were entitled to a jury trial. In its decision the court said that an examination of the pleadings shows that long and tedious accounts are involved which will require' an examination to determine the indebtedness of one party to the other. The referee, T. F. Railsback, was directed to take an accounting between plaintiff and defendants, and try out questions of law and fact touching that' indebtedness as presented by the pleadings, exclusive of the defendants’ claim for damages. The suit is equitable in its nature, involving, as it does, the foreclosure of a mortgage lien and an accounting. The code provides that references may be made on consent of parties and in case they do not consent the court may direct a referee where a trial requires an examination of mutual accounts or where there is a long account on one side (R. S. 60-2923). Here there are mutual accounts. Plaintiff, as shown, has set out an account of more than 100 separate transactions -and defendants add many more. In the answer defendants are demanding that plaintiff account to them for moneys collected from customers from time to time, of furniture taken from them without accounting for the proceeds. They are complaining because no account has been furnished to them by the plaintiff, and in their prayer they ask the court to require an accounting. It is clear, therefore, that the case is peculiarly one for a trial by a referee and certainly it cannot be said that there was an abuse of discretion in making the appointment. (Bank v. Myers, 104 Kan. 526, 180 Pac. 268; Drovers and Merchants Bank v. Williamson, 121 Kan. 301, 246 Pac. 676.)
The judgment is affirmed.