110 Mo. App. 406 | Mo. Ct. App. | 1905
— The plaintiff sues defendant on an assigned account for one month’s rent for the use of a certain building .in Kansas City, Missouri. The answer admits the indebtedness and sets up as defenses various claims as set-offs and counterclaims. It
It is alleged that the work was performed in an unworkmanlike manner and left in bad condition'; that by reason thereof the water that fell upon the roof of the building overflowed said conductors, which were insufficient to carry it off, and ran down the walls of the building, causing them to become damp, thereby damaging defendant’s goods in said store to the amount of $500. The second count is a claim for water furnished in and about the construction of said work,, which it is alleged was used by plaintiff’s assignor, and for which it was plaintiff’s duty to pay defendant. The amount claimed is $75. The third count is for gas used during the construction of the alterations, furnished to said assignor and to plaintiff. Amount claimed, $92. The fourth charges that by reason of the unnecessary delay of the work, during which time the building and goods' therein were left exposed, and in consequence of such delay plantiff was compelled to hire a guard to protect them at a cost of $405. The fifth count is for injury to defendant’s business caused by unnecessary delay in the work of alterations. The amount claimed being $1,000.
The defendant’s theory of the case is that under the allegations of the petition, independent of the alleged assumption of the contract in evidence, the de
But if.we understand defendant correctly, it insists that all the demands set up are available as set-offs against plaintiff’s cause of action. Section 4487, Revised Statutes 1899, is as follows: “If any two or more persons are mutually indebted in any manner whatsoever, and one of them commence an action against the other, one debt may be set off against the other, although such debts are of a different nature.” Section 4488 reads: “In actions on assigned accounts and non-negotiable instruments, the defendant shall be
In order to constitute a set-off the demand must be in the nature of a debt. [Waterman on Set-off, sec. 133.] And the term “debt” as defined by most of the appellate courts of the country, does not include a claim for unliquidated damages. [69 Fed. R. 745-746; In re Adams (N. Y.), 12 Daly 454; Watson v. McNany, 4 Bibb. (Ky.) 356; Lindsay v. King, 23 N. C. 401; Dowling v. Stewart, 4 Ill. 198; Baum v. Tonkin, 110 Pa. 569; Powell v. Railroad, 36. Fed. R. 726.] There are some courts that give the word a more extended meaning, but there can be no question that when applied to the statute in question it was not intended to include other' than liquidated demands; otherwise, it would also include in some instances counterclaims, which would have the effect of confounding the statutes pertaining to these two classes of demands. Under the statutes a set-off cannot be a counterclaim, nor vice versa. The courts of this State have recognized the distinction between set-off and counterclaim. [Empire Co. v. Boggiano, 52 Mo. 294; McAdow v. Ross, 53 Mo. 199; Emery v. Railroad, 77 Mo. 341.]
But defendant’s contention is that although its demands do not constitute set-off, as provided in section 4487, supra, they are made available as a defense under section 4488, supra. That the words “or other defenses” includes such claims, and cites in support of its contention Lowrey v. Danforth, 95 Mo. App. 441. There the defense was a plea that the note sued on had been released. It will be seen that the ruling there does not support defendant’s views. The defense interposed was to the note itself, not an independent, unliquidated demand. And the term “or other defense” is used in a restrictive sense; it must be a defense to the demand itself, not a set-off nor a- counterclaim. And as the first, fourth and fifth counts of the answer are
It is insisted that in any event the claims for gas and water furnished to plaintiff’s assignor were liquidated demands, and as such were set-offs. The statute provides that one debt may be set off against another. We have already seen that a debt means a liquidated demand. The plaintiff claims if they were not liquidated demands, they were not the objects for set-off. Bouvier’s law dictionary defines “liquidated” as that which is made clearly manifest, as liquidated damages, ascertained damages, liquidated debts, ascertained debts as to the amount. A claim is liquidated when the amount due is fixed by law, or has been ascertained and fixed by the parties. [Railroad v. Mills (Col.), 69 Pac. Rep. 317; Commercial Assurance Co. v. Myer, 9 Tex. Civ. App. 7; Mitchell v. Addison, 20 Ga. 50; Kennedy v. Queen’s County, 62 N. Y. Supp. 276.] The authorities are too numerous to mention. It follows, therefore, that defendant’s claims not being for a debt within the meaning of the statute, and not being a defense to the account itself, they were not proper subjects of set-off.
With this view of the case, it follows that the judgment of the court was proper. It is, therefore, affirmed.