181 Mo. App. 311 | Mo. Ct. App. | 1914
This action originated before a justice of the peace and was tried in the circuit court without a jury, on an agreed statement of facts. Judgment was rendered for defendant and plaintiff appealed.
In a contract between defendant, who is a contractor doing business in Kansas City, and a corporation engaged in the manufacture of cement in Kansas, defendant purchased ten shares of the preferred stock of the company at their par value of $1,000’, and the company agreed “in consideration of this subscription ... to give gratis” fifty barrels of cement with each one hundred barrels purchased by defendant until the value of such donations should equal the par value of the preferred stock thus purchased.
Afterward, on November 4, 1911, the company accepted a blanket order from defendant for 1500 barrels of cement for delivery “when ordered if completed by Jan. 1, 1912,” and during the month of No
Plaintiff brought this suit on the account and defendant appeared in the justice court and filed a “counter-claim or set-off” in which he prayed judgment against plaintiff for $283.66, “as damages for the failure of plaintiff’s assignor to deliver fifteen hundred barrels of cement at a price equal to that of one thousand barrels at sixty-nine and one-half cents a barrel, net, according to the terms of a certain written contract and order filed herewith.”
On the next day defendant filed a “recoupment” alleging as a defense to the account “that the cement, the purchase price of which forms the basis of this suit, was purchased by defendant under a contract . . . by which plaintiff’s assignor was to furnish and deliver free to defendant one-third the amount of cement which defendant might order; that defendant ordered fifteen hundred barrels, but plaintiff’s assignor and plaintiff have neglected and refused to deliver the five hundred barrels free and that the damages thereby incurred by defendant exceed the amount of plaintiff’s claim.”
It is conceded that defendant is indebted to plaintiff as the assignee of the cement company in the full amount of his demand and the counterclaim was abandoned in the circuit court. The defense there inter
The statutes relating to actions in justice courts provide (sec. 7411, R. S. 1909) that “the defendant may unite in his defense as many grounds of defense, including off-sets and counterclaims as he may have. . . .” This statute has remained unchanged since 1889 (see sec. 6137, R. S. 1889) when sec. 2850, R. S. 1879, which provided that “the defendant may unite in his defense as many grounds of defense including offsets as he may have” was amended by inserting after “offsets” the words “and counterclaims.” Before this amendment the quoted clause remained unchanged on the statute books for many years (see R. S. 1855, p. 929, sec. 5) and it was the opinion of the courts that it did not authorize the filing of any counterclaim not of the nature of a set-off in an action in a justice court (Flesh v. Christopher, 11 Mo. App. l. c. 489) and that since the provisions of the Practice Act relating to counterclaims (sec. 1897, R. S. 1909) do not apply to practice before justices of the peace, “a defendant’s counterclaim must be supported, if at all, as a defensive recoupment, or mere right of reduction of damages.” [Emery v. Railway, 77 Mo. l. c. 349.]
Tbis statute provides tbat a counterclaim, wbetber of a defensive or aggressive nature “must be one existing in favor of a defendant and against a plaintiff” and consequently does not authorize tbe filing of a counterclaim of either nature- in an action where tbe plaintiff is tbe assignee of tbe person against whom tbe defendant claims to have a cause of action. Tbe statutory counterclaim must consist of a cause of action wbicb defendant might have made tbe subject of a separate suit. [Estate Co. v. Arms Co., 110 Mo. App. 406.] When a right of a defendant against a plaintiff is not a matter of set-off and “falls short of constituting a cause of action, it belongs to tbe class of partial defenses in reduction or mitigation of damages and ought to go by tbe name of reduction of damages.” [Emery v. Railway, supra, l. c. 346.] It is neither a statutory counterclaim nor is it a matter of recoupment since, as stated in tbe Emery case “no right of recoupment as understood in modern times, or counterclaim can exist in tbe absence of a cause of action in favor of tbe defendant.”
We are bound by tbis definition wbicb is tbe latest utterance of tbe Supreme Court on tbe subject, though
Consequently it must be said that whenever it appears that the right a defendant asserts against a plaintiff consists of 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, it must be regarded as a
We think the right asserted by defendant is a cause of action which he could have made the subject of an independent suit against the cement company. Certainly it does not go “to abate or reduce the amount claimed (by plaintiff) by showing a partial failure of consideration.” [Emery v. Railway, supra, 1. c. 350.] Defendant admits he owes the full amount of plaintiff’s demand and has no defense thereto. He does claim that the coal company owes him a greater sum in unliquidated damages for the breach of a reciprocal contractual promise. The right is not a matter of set-off since the damages are unliquidated (Brokerage Co. v. Campbell, 164 Mo. App. 8) but is a counterclaim which cannot be asserted against the assignee of the cement company. The declarations of law asked by plaintiff were improperly refused and judgment should have been rendered for plaintiff. The judgment is reversed and the cause remanded with directions to enter judgment for plaintiff in accordance with the views expressed.