164 Mo. App. 8 | Mo. Ct. App. | 1912
This is an action on two promissory notes of three hundred and fifty dollars each executed by defendants W. F. Campbell and C. S. Campbell as principals and R. A. Campbell and R. S. Campbell as sureties in payment to plaintiff of the rent for one year of a farm of 120 acres in Jackson county
“Said second party (these lessees) agrees to farm said land in a first-class maner, and to keep all shrubbery and fruit trees around the house and in the garden and orchard, properly trimmed, and in good condition, and all the fences and gates in good condition, and to keep the weeds and underbrush cut out on the pasture land. This lease being made upon the special condition that the whole place is to be kept in good condition, it being the intent of said first party to sell said farm during the summer of 1907, and to aid in that purpose, said first party makes this lease con
This lease is made with the express understanding that said first party intends to sell said farm, and for that purpose, its representatives shall have free access to any part thereof at all proper times. To effect said sale, said first party may divide it up into small tracts and will have numerous customers looking over the place, and said secon^l party agrees to assist in such sale by giving the prospective purchaser free access to such information as the prospective purchaser may desire of any part of said farm and buildings.
In case of the sale of any portion of said farm before the expiration of this lease and the purchaser shall want possession thereof, the said second party shall be allowed a rebate for the unexpired term of this lease, as the time and amount of land of which he is dispossessed shall bear to the whole, and if there are any growing crops upon such land, he shall be allowed a fair valuation of said crops at the time the' land is taken. If the land of which he is dispossessed, should include the house and improvements surrounding it, he shall be allowed a drawback of- dollars per month for the use of the house for the unexpired term of the lease and said second party agrees to give possession to any part of said land that may be sold, upon being given thirty (30) days’ written notice from said first party. In the event that said first and second parties cannot agree as to what damages shall be allowed for growing crops, they shall each appoint one man as arbitrator and the two so chosen shall appoint a third man, and these three shall fix the damages and the amount agreed upon by these arbitrators shall be paid to said second party, but the vacation and surrender shall take place at once, or within thirty (30) days, upon the request of first party, irrespective
Pursuant to this lease defendant lessees took possession of the farm and conducted a dairy thereon during the whole term. They kept from thirty-five to forty milch cows and sold all the milk to a dealer. They do not claim in their testimony that the acts of plaintiff on which they found their defense and counterclaim damaged the cows, decreased their output or prevented the sale of the product to the dealer with whom they had a contract. A part of the farm was under cultivation and a part was in meadow and pasture land. Defendants, whose possession was not disturbed during the first five months of their term, had growing and thriving crops of millet, cane and hay. Shortly after the beginning of the term plaintiff had the land surveyed and platted into an addition. The plat subdivided the land into blocks and lots and streets and alleys and plaintiff made a number of sales of lots during the season, but delivered the actual possession to the purchaser of only one tract so sold. That tract contained four lots or about half an acre and was situated in defendants’ millet field. There is no dispute over the fact that defendants lost the crop on that tract and became entitled to reimbursement for that loss.
On August 23,1907, plaintiff wrote defendants the following letter: “After considering the whole situation, we have concluded it would he best for all parties to cancel our arrangement and terminate the lease on the house and premises you now occupy, located in the southeast quarter Q) of the southwest quarter (l), section twenty (20), and the east one-half (-£) of the northwest (|:) quarter, section twenty-nine (29), township 48, range 33, Jackson county, Missouri, under the terms of the lease entered into between ns on the 23d day of February, 1907.
“We would like for you to arrange to give us possession on the 30th day of September. We will adjust
Defendants being unable to rent another farm at that time in the year declined to accede to this request and remained on the place. Plaintiffs were anxious to make their addition more attractive to customers and to that end sought and obtained the consent of plaintiffs to the grading of some of the platted streets through the fields of millet, cane and hay. The agreement which was not reduced to writing thus is stated by one of the defendants:
“Q. Did you complete any agreement at that time about the streets? A. No, sir. Q. When did you? A. Mr. Thayer came out sometime the next week and said he wanted to put through a street or two, and wanted to know where it wouldn’t damage me too much. He said they wanted to open the place — they didn’t want it to look so much like the country — wanted to make it look like town. Q. Was there anything said about payment of damages? A. Yes, they said whatever the damages was, they would settle it. He said they wanted me to grade some streets — I could work out there — if I would let them put the streets through — that later on they would have to do some grading.”
The agreement is stated differently by a witness introduced by plaintiff. We quote from his testimony:
“Q. Tell the jury what understanding was had at that time, what agreement was entered into with
The evidence of defendants tends to show that pursuant to this agreement plaintiff had a number of streets graded and that damage thereby was wrought to the growing crops' to the amount of about $300.
The fences on the place were destroyed at places required by the prosecution of the work. The damage to the crops was caused partly by the grading work and partly by inroads of live stock that found ready access to the fields through the numerous openings in the fences. Only one inclosnre was left intact— the cow lot — and during the latter half of the term defendants were put to the annoyance and trouble of herding their stock and of looking for cows that strayed away. It is not claimed by defendants that this additional work caused them direct pecuniary loss. They did not find it necessary to hire extra help and their
The counterclaim pleaded the same facts as the answer and treated these items of damages as proper subjects of counterclaim.. At the request of defendants the court instructed the jury “that if you believe from the evidence that after the defendants went into possession of the said premises under the lease in question the plaintiff requested of these defendants permission to grade streets through the said premises and take down and remove fences therefor and promised and agreed to pay these defendants if they would permit such streets to be graded and f ences to be taken down and removed any and all damages that might be sustained by the defendants by reason of the grading ^of the said premises and removal of said fences and •that in pursuance of said agreement the defendants :took possession of the parts of the said premises, graded streets through the same and removed the fences, then you are instructed that the defendants are entitled to recover on their counterclaim herein all damages shown by the evidence to have been sustained by the defendants on account of the grading of said streets through said premises and the removal of the
The verdict of the jury was as follows: “We, the jury, find the issues for the plaintiff on its notes, principal and interest, to the sum of $627.43. We further find the issues for the defendants R. A. and R. S. Campbell on their counterclaim and assess their damages at $942.68. Deducting the lesser from the greater, we find for the defendants, R. A. and R. S. Campbell in the amount of $315.25.
“Ernest Gr. Could, Foreman.”
At the hearing of the motions for a new trial and in arrest of judgment defendants entered a remittitur of sixty-two dollars the damages claimed for the lost cow and the court, after overruling the motions rendered judgment for defendants in the sum of $253.25. Plaintiff appealed.
The damages for the lost cow being eliminated by the remittitur the judgment before us includes an allowance to defendants on their counterclaim of these items of damages, viz., injury to crops alleged at $300; extra labor and trouble caused by the destruction of fences alleged at $500, and damages on account of land taken for streets and vacated on notice, alleged at
Counsel for plaintiff argue that none of these items is a proper subject of counterclaim but that all are matters of defense to the notes and that inasmuch as the verdict was for the plaintiff for the full amount of the notes, in effect, it was a finding against defendants on all matters of defense and, therefore, that the verdict on the counterclaim being entirely unsupported should be treated as a nullity and judgment should go for plaintiff for the full amount of the verdict in its favor. Section 1807, Revised Statutes 1909, thus defines a counterclaim:
“The counterclaim . . must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, in such manner that they may be intelligently distinguished, and refer to the cause of action which they are intended to answer.”
Section 1866, Revised Statutes 1909, provides: “If 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.”
The distinction between set-off and counterclaim thus is stated by the Supreme Court in Emery v. Railway Co., 77 Mo. 339:
‘ ‘ The growing principle of recoupment was recognized by the Legislatures of many of the states, including our own, and under the name of counterclaim it was so enlarged as to give the defendant the benefit of the difference between his cross demand and the plaintiff’s claim, when the excess should prove to be in his favor. [Chandler v. Childs, 42 Mich. 128.] The counterclaim of our Practice Act includes everything which in modern times goes under the name of recoupment proper, as well as much more; for it extends to offsets and many cross actions not in any way connected with the plaintiff’s demand. [Pomeroy, Remedies, sec. 736; Flesh v. Christopher, 11 Mo. App. 483; Gordon v. Bruner, 49 Mo. 570; Conner v. Winton, 7 Ind. 523; Pattison v. Richards, 22 Barb. 146.] But no right of recoupment as understood in modern times, or counterclaim, can exist in the absence of a cause of action in favor of the defendant. A cross action is always implied in its terms. [Pomeroy, Remedies, sec. 733; Carey v. Guillow, 105 Mass. 18; Clark v. Wildridge, 5 Ind. 176; Vassear v. Livingston, 13 N. Y. 257; White v. Reagan, 32 Ark. 281.] When it falls short of constituting a cause of action, it belongs to the class of partial defenses in reduction or mitigation of dam
It is undoubtedly true that when the plaintiff sues for the price of labor the defendant is at liberty to recoup against his claim, any damages suffered through the negligence of the plaintiff whereby the value of the consideration was depreciated. [Eaton v. Woolly, 28 Wis. 628; Pomeroy, Remedies, sec. 732.] In was in this class of cases, the modern use of the term recoupment was first recognized in England in a restricted sense. But in such cases it will be found that a valid cross action existed in favor of defendant, and in the use of it he was often confined to such damages as depreciated the value of the consideration.”
And in 25 Am. and Eng. Ency. of Law, p. 572, we find an accurate definition of counterclaim: “A counterclaim must constitute a good cause of action in favor of the defendant and against the plaintiff, and belong to one of the several classes of actions mentioned in the statute. It must be a claim upon which a separate action would lie and upon which the defendant could recover a several judgment against the plaintiff. If the facts do not constitute a cause of action in favor of the defendant and against the plaintiff, they do no t constitute a counterclaim, though they may be sufficient to constitute a defense by way of set-off or otherwise.”
All of the demands pleaded in defendant’s counterclaim were unliquidated and were not debts in the legal sense of that term. A debt is a legal liability to pay a specific sum of money and an uncertain and unliquidated claim for damages whether such claim be founded in tort or in contract is not a debt. [See 2 Words and Phrases, title “Debt.”] The right of set-off is purely statutory and since the statute makes debt the sole subject of set-off and since defendants’ claims, being for unliquidated damages were not debts, it fol<
Further plaintiff contends: “There was no basis in law or fact for that part of the instructions which told the jury that, in estimating defendants’ damages, they were entitled to take into consideration ‘ such general damages, inconvenience, expenses and trouble the defendants are shown to have sustained on account of the grading of the said streets and removal of fences and the occupation by the plaintiff of said premises for said purposes, not exceeding the sum of $500.’ ”
On this subject counsel argue, first, that the acts of plaintiff in grading the streets and destroying the enclosures were authorized by the terms of the lease and as the leases did not include such damages among those for which defendants should receive compensation the contract contemplated that the loss occasioned by such acts should fall on defendants. We do not so interpret the lease. It gave plaintiff the right to survey the land, to plat it into an addition and to make sales of lots but it did not authorize the grading of streets, the destruction of fences, or any other spoliation of defendants’ use of the farm than that caused by the vacation of such lots as might be sold during the season. The conduct of plaintiff shows that its officers so construed the contract. They tried to obtain a cancellation of the lease and a surrender of the farm on the plea that they intended practically to destroy it as a farm and failing in this effort made a new contract with defendants by which, in consideration of being allowed to grade streets, plaintiff agreed to
That rule is sound. It is always incumbent upon the party who asserts he has been damaged to adduce proof of the elements of his damage but the rule against the recovery, of uncertain damages relates to uncertainty as to the cause rather than uncertainty as to the measure or extent. A person who commits a breach of his contract and thereby injures the other party is not permitted to escape liability because the amount of the damages he caused is uncertain and is not susceptible of accurate proof. In such cases the
It is true defendants were not compelled to employ extra help; did not suffer a diminution of the product of the dairy and sold the product without loss but owing to the destruction of the inclosures on the farm they and their servants were compelled to perform extra labor and to endure the annoyance of looking after thirty-five or more milch cows which each morning had to be turned loose to graze, watched during the day and collected at night. Defendants are entitled to compensation for that labor and trouble. One of the most fundamental rules of the law of damages is that the injured party should receive compensation for the actual loss sustained in consequence of the injury.
We regard the facts and circumstances adduced by defendant as constituting sufficient evidence to go