Respondent purchased from appellant’s agent the piano which is the subject-matter of the present case in replevin. The action was begun December 18, 1905, before a justice of the peace and was afterwards' appealed and tried anew in the circuit court. The sale of the piano occurred September 4, 1905, the purchase price being $350, of which $100 was paid in cash and five notes of $50, due at successive periods and secured by a chattel mortgage on the piano, were given for the balance. The mortgage provided that on default in payment of any part of the debt, appellant might declare the whole debt due and payable and take possession of and sell the property, according to the terms of sale stipulated in the mortgage. The first note matured December 4, 1905, and default having been made in the payment of it, the property was replevied in the present action and turned over by the constable to appellant. The complaint is in the usual form for such actions when instituted before justices of the peace, but the answer, which also was filed before the
It will be perceived the defense rests on a rescission of the contract of sale for the fraud alleged to have been practiced by appellant’s agent, and asks that respondent be reimbursed the $100 in cash he was out and the cancellation and return of his notes. Appellant’s right to the piano is not disputed except this far: respondent claims the right of possession until he obtains the relief for which he prays. In truth the rescission of the contract of sale necessarily imports that respondent recognized appellant’s ownership of the piano and wished to restore it to him, and to have restored to respondent what he had turned over to appellant for the piano. Rescission imports that both parties are to be put in statu quo, each receiving what he had parted with to the other. We had occasion in McCormick Harvesting Company v. Hill, 104 Mo. App. 544, 79 S. W. 745, to consider whether or not counterclaims will lie in replevin cases and, if so, under what circumstances. We concluded either setoffs or counterclaims may be pleaded in defense of such actions; that is to say, when the setoff or counterclaim will defeat the right of the plaintiff to recover the property; as, for instance, if he was replevying for default in paying a debt secured by chattel mortgage, a setoff against such debt will lie, because it cuts away the ground on which the plaintiff
Bespondent is not remediless but may proceed against appellant in a separate suit, and if the latter is insolvent, may enjoin this proceeding until the rights of the parties are adjusted by a tribunal of competent jurisdiction.
The judgment is reversed and the cause remanded.