71 Mo. 560 | Mo. | 1880
This was a suit to recover the value of 600 gunny sacks alleged to have been wrongfully converted by the defendants to their own use. The defendants admitted that the sacks came into their possession, and that they had not returned the same, and set up by way of counterclaim that the plaintiffs, at the time named in the petition, agreed to sell and deliver to the defendants, on board a steamboat at Muscatine, Iowa, for transportation to Hannibal, Mo., which was then the defendants’ place of business, 1,046-| bushels of choice peach-blow potatoes in gunny sacks, at the price of sixty cents per bushel, the said sacks to be returned by the defendants to the plaintiffs; that, in consideration of said agreement, and relying upon the honesty and good faith of the plaintiffs, the defendants then and thei’e paid to the plaintiffs, in advance, the sum agreed to be paid for said potatoes, to wit: $627.90; that the potatoes delivered by the plaintiffs under said contract were much inferior in quality to the potatoes paid for and agreed to be delivered, and were delivered in the same sacks, to recover the value of which the present suit was brought; that, by reason of the failure of the plaintiffs to comply with their contract, the defendants had been damaged in the sum of $141, for which sum they prayed judgment.
That portion of the defendants’ answer setting up a counter-claim was, on motion, stricken out by the court, on the ground that a counter-claim founded upon contract could not be pleaded to an action founded on a tort. This ruling of the court has been assigned as error. The
The counter-claim pleaded by the defendants, if it be such as the statute recognizes, must fall within the first class. If the facts stated by the defendants be true, they certainly have a cause of action against the plaintiffs. It is not, however, a cause of action arising out of any contract set forth in the petition, for no contract is therein set forth. The facts set forth in the petition are that the defendants came to the possession of certain sacks belonging to the plaintiffs and wrongfully converted them to their own use. These facts constitute in a legal sense a “transaction,” which is a more comprehensive term than “ contract.” Xenia Bank v. Lee, 7 Abb. Pr. 372. The details of the transaction, the evidential facts, are not stated, but the ultimate facts only, those which -will entitle the plaintiffs to relief, when established by other facts proved at the trial. It is plain, however, that the word “transaction” as employed in the code cannot be restricted to the simple statement of the wrong complained of by the plaintiff, for it would seem to be impossible that.a cause of action could accrue to the defendant out of an injury inflicted by him upon the plaintiff'. It must be held to include, therefore, all the facts and circumstances out of which the injury complained of by him arose, and if these facts and circumstances also furnished to the defendant a ground of complaint, or cause of action, against the plaintiff, the defendant will be entitled to present such cause of action as a counter-claim, showing by proper averments that it is a
