Reichert v. Krass ( 1895 )

Lotz, J.

This suit was instituted by William Krass, as the surviving partner of the firm of Krass & Grumman, against Charles A. Eeichert, Maggie Eeichert and the Anheuser-Busch Brewing Association, to foreclose a mechanic’s lien on certain real estate owned by Charles A. Eeichert, and upon which the brewing association held á mortgage. Upon proper petition the Gambrinus Savings and Loan Association, No. 2, was made a party defendant,, it having taken the place of the brewing association as mortgagee.

The cause was tried by the court without the intervention of a jury. There was a finding in favor of Krass in the sum of $744.00, and that the same was a lien on the realty. There was also a finding that the brewing association had no interest in the property, and it is not concerned in this appeal. It was also found that the savings and loan association held a mortgage on the real estate, the lien of which is inferior to that of the appellee Krass but it does not question the correctness of this finding nor join in this appeal. There was a finding in favor of Maggie Eeichert.

William Krass alleged in his complaint that the firm of Krass & Grumman entered into a contract, with Charles A. Eeichert, in which it agreed to furnish the materials and construct and erect for the said Eeichert a dwelling and business house and a stable on real estate owned by him, for which he agreed to pay the sum of $3,775.00 ; and the firm also agreed to build on said realty eight hundred and eighty-six feet of fencing at the agreed price of thirty cents per foot, the contract price for said work and materials to be paid by Reichert in payments as- the work progressed; that said firm fully complied with the agreement; that at the request of Reichert the firm did other work and furnished other materials of the value of $151.00 in addition to that required by the contract; that Reichert never paid the full amount of the contract price, and that there is due on account thereof and on account of the extra work and materials the sum of $123.00, and that they fully performed ‘ ‘ all the terms and conditions, agreements and obligations to be by them performed under said agreement. ”

Charles A. Reichert and Maggie Reichert answered this complaint by a general denial. They also filed a pleading which is denominated an answer and cross-complaint. A pleading cannot be both an answer and a cross-complaint. It must be one or the other. It matters not what name it bears, its character must be determined by its averments. It is therein alleged, in substance, that Charles A. Reichert entered into a contract with the plaintiffs wherein it was agreed that said firm would erect on the same realty described in the complaint a certain building and eight hundred feet of fencing; that in the erection and construction of the building and fencing the firm agreed to use good material and do the work in a good, workmanlike manner ; that the firm failed to comply with its contract in that the materials used were decayed and unseasoned, and that the work was not done in a workmanlike manner; that the roof and guttering were so improperly constructed that the water ran into the building, damaging the walls, ceiling, carpets and furniture of the said Reichert; that on account of the firm’s failure to comply with the contract he has suffered damages in the sum of $1,500.00. He asked that so much thereof he set off against the plaintiff’s claim as would satisfy the same, and that he have judgment against the plaintiff, and all other proper relief. The contract referred to is the same one set out in the complaint. This pleading, strictly speaking, is a counterclaim or cross-complaint, and not an answer.

The cause being at issue on the complaint and the cross-complaint, and being called for trial, Charles A. Eeichert moved the court for and demanded a jury to try the issue joined on his cross-complaint. This motion was denied, to which the said defendant excepted. The ruling on this motion was made a cause for a new trial, and presents the only question for our consideration on this appeal. The appellee’s position is that the action to foreclose the mechanic’s lien is strictly an equity proceeding and triable by the court without the aid of a jury; that the matters set out in the cross-complaint are properly matters in defense and are necessarily drawn into equity by the complaint.

The grievances complained of in the counterclaim grew out - of the same, contract and transactions which are the basis of the complaint. The defendant may under such circumstances elect whether he will use the injury he has sustained as a defense by way of recoupment, or he may use it as a counterclaim. Brower v. Nellis, 6 Ind. App. 323; Aultman & Co. v. Richardson, 10 Ind. App. 413; Aultman & Co. v. Forgey, 10 Ind. App. 397. If he use the matter in defense by way of recoupment, he can have no judgment over for any excess of damages. If he use it as a counterclaim he may have judgment over for the excess found due him. But in either event the plaintiff’s right to a recovery will be defeated. As the plaintiff’s right to a recovery in his equitable action is hable to be defeated by the counterclaim, the whole controversy is drawn into equity and is triable by the court without the aid of a jury. Towns v. Smith, 115 Ind. 480; Martin v. Martin, 118 Ind. 227.

Filed May 15, 1895.

It is true that the appellant might have elected to use the breach of the contract set out in his counterclaim as an independent cause of action and have had the issues thereon tried by a jury, but as he voluntarily brought it into an equitable proceeding he will be bound to submit to the rules that govern in such proceedings. The court did not err in overruling the motion.

Judgment affirmed.