46 Minn. 121 | Minn. | 1891
The action is by plaintiff, as owner, to recover possession of 1,400 barrels of apples; the complaint demanding, judgment for the delivery of the apples, and damages for the detention thereof. The answer claims a lien on the apples as warehouseman, for storing them at an agreed price per barrel per month,, amounting to $633, and also a lien by agreement between it and plaintiff for freight charges on the apples, paid by it to the railroad company which had transported them on receiving them, at the request of plaintiff, the amount so paid being $887.27, of which plaintiff has paid it $596.16; and also a lien amounting to $4.42 for two-items of services on the apples, — the amount of said liens unpaid' being $928.53; and it claims the defendant is entitled to possession under the liens, and it asks that the action be dismissed. The reply admits the agreement for storage, and the fact of storage, except of 118 barrels, for one month; admits the payment of the freight charges by defendant, but denies any agreement for a lien on account thereof; and alleges that plaintiff has repaid defendant all so-paid, and denies all other new matter in the answer; and then the reply proceeds, “The plaintiff alleges, by way of counterclaim to-the claim of defendant as alleged in his said answer,” and then sets forth what are, in effect, allegations of incompetency and negligence on the part of defendant in the storing and keeping of the apples, in consequence whereof 500 barrels were lost, and the remainder-injured, to plaintiff’s damage of $1,750. The reply then demands judgment as in the complaint demanded, and for the sum of $1,750’ and interest. ' At the trial the court granted defendant’s motion for judgment of dismissal on the pleadings. From the order refusing a new trial, it appears that the court ordered judgment because it regards the part of the reply designated a “counterclaim” to be a departure in pleading, and that, disregarding the reply so far as it was.
As we have intimated, we doubt that the effect of the matter called a “counterclaim” in the reply upon the claim for a lien in the answer, its tendency to defeat that claim, was urged in the court below. But it is presented to us upon the record, so that we have to determine it. Of course, the plaintiff may, in his reply, allege a defence against the claim for a lien; as that the debt for which the lien is claimed never accrued, or that it has been paid, or the lien extinguished in any other way. And here arises the question of pleading. May a party who pleads matter expressly as a counterclaim have the benefit of it as a defence, if it constitute a defence but not a counterclaim? In Broughton v. Sherman, 21 Minn. 431, and Griffin v. Jorgenson, 22 Minn. 92, it was held that, to constitute new matter a counterclaim, it must be pleaded as such. This may be done by stating in the pleading that it is pleaded as a counterclaim, or by a demand for affirmative relief upon it. There are good reasons for requiring this, one of which is that the opposite party may be apprised that he is called on, not merely to make good the claim he asserts in his pleading, but to defend himself against affirmative relief sought by his opponent. Matter may be of such a nature as to
Order reversed.
Mitchell, J., took no part in this decision.