Stevens v. Able

| Kan. | Jul 15, 1875

The opinion of the court was delivered by

Valentine, J.:

This action was commenced originally in a justice’s court by Able against Stevens. Each party filed a bill of particulars in the justice’s court. Each set forth in his bill 'of particulars a cause of action in favor of-himself, and against his adversary, and arising out of and founded upon contract. Able however claims that the cause of action set forth in his bill of particulars was for a liquidated demand, and that the cause of action set forth in Stevens’ bill of partibulars was for unliquidated damages. We shall decide the case upon the theory that this claim of Able is correct. Able further claims that because Stevens’ cause of action is for unliquidated damages it is therefore not the subject of set-off in this action. The case was tried before the justice— judgment rendered therein — and then appealed to the district court. The case was again tried in the district court. There the court refused to permit the defendant Stevens to prove his cause of action on the ground that it was not the subject of set-off. We think the court erred. In this state any cause of action arising from contract, whether it be for a liquidated demand, or for unliquidated damages, may constitute a set-off, and may be pleaded as such in any action founded on contract, whether such action be for a liquidated demand, or for unliquidated damages. (Civil Code, §§ 94, 98.) While it is not clear beyond all possible doubt, that this is the meaning of our statutes, yet we think that this is the clear import of the same. They provide that, “The defendant may set forth, in his answer, as many grounds of defense, counterclaim, set-off, and for relief, as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both.” (Code, § 94.) And, “A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract, or ascertained by the decision of a court.” (Code, § 98.) We suppose that there can be no question as to the applicability to this case of these provisions of the code, although the action was commenced in a justice’s court. (Justices Act, § 185.) The construction that we have given these statutes is in accordance with the entire spirit of the code, which attempts as far as possible to have all matters of-controversy between the'litigating parties determined in one action. A plaintiff may now join in one action as many causes of action as he may have, whether legal or equitable, or both, where they all arise out of contracts, either express or implied, and whether they are for liquidated claims, or unliquidated damages, or for something else. (Code, § 83.) We suppose that every lawyer knows that there was no such thing as set-off at common law, and that the whole subject is now governed by statute.

The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.

All the Justices concurring.