Houghland v. Dent , 52 Mo. App. 237 ( 1893 )

Smith, P. J.

— This was an action brought before .a justice of the peace by the plaintiff against the defendants, by attachment under the landlord and tenant statute, to recover rent.

The defendants filed what was denominated by them a plea in abatement, in which there was a traverse of the allegations contained in the affidavit for the attachment supplemented with the affirmative allegation, “that all the said rent has been fully paid and settled between the plaintiff and défendants.” A ease is, therefore, presented where a plea in bar is set up in the plea in abatement. The effect of this was to waive the plea in abatement. Cannon v. McManus, 17 Mo. 345; Burgoin v. Wheaton, 30 Mo. 215; Fugate v. Glasscock, 7 Mo. 577; Hartry v. Shuman, 13 Mo. 547.

Proceedings on all attachments under the landlord and tenant statute are required to be the same as provided by law in cases of suits by attachment. Revised Statutes, sec. 6385. Proceedings by attachment are excepted out of the operation of the rule of practice provided by statute in other civil cases to the effect that “a defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as had been heretofore denominated legal or equitable or both.” Little v. Harrington, 71 Mo. 390, overruling Rippstein v. Ins. Co., 57 Mo. 86; Fordyce v. Hathorn, 57 Mo. 120. Upon the pleadings thus framed the matter pleaded in abatement was waived, and, hence, tendered no issue for trial in the ease. The plea to the merits tendered the only issue left in the case, which was whether the rent alleged by the plaintiff’s statement to be due “had been fully paid and settled between plaintiff and defendants.”

The evidence, it is true, took a much wider range than it should have under the issues, but, since this was an error more favorable to the defendants than the plaintiff, the former have no right to complain of that. The instructions for the plaintiff and the one given by the court on its own motion for the defendants presented the law of the case in a very favorable light before the-jury for the defendants. The first instruction for plaintiff, which told the jury, among other things, that if they found for the plaintiff they should find the value of the unpaid vent at the rate of forty-five cents per bushel, did not assume any issuable fact. The price of the corn was by the plea to the merits impliedly admitted. It is not error for an instruction to assume a fact which is not controverted nor issuable. Semple v. Crouch, 8 Mo. App. 593.

And as to the action of the court in refusing the defendants’ first and second instructions, it is sufficient to say there was no issue of fraud in the case, and, therefore, these instructions were properly refused.

And as to defendants’ third instruction, no more need be said of it than that the court upon its own motion gave one in its place which is nearly word for word like it.

The defendants contend that the plaintiff received three loads of corn in excess of the three hundred and ninety-three bushels delivered to him in the crib. "We do not so understand the evidence. Nor do we understand that the plaintiff’s fourth instruction authorized a finding against defendants for this corn received by plaintiff though not delivered to him in the crib as required by the contract. The three loads were delivered under the contract though not in the manner required by it. The delivery of this quantity of the rent corn was made in a manner different from that provided in the contract, but, as such a delivery was accepted by the plaintiff, io was sufficient for all purposes. A consideration of the evidence in connection with the instruction convinces us that no injury resulted to the defendants by the giving of such instruction.

The action was one plainly for rent payable in corn which was due and unpaid. There was no question of tortious conversion in the case as the defendants seem to suppose. The case is not analogous to Finlay v. Bryson, 84 Mo. 644, nor to Riley v. Milling Co., 44 Mo. App. 519. And for reasons already sufficiently appearing it is made quite manifest that under the pleadings no such question could arise. The judgment is for the right party, and should be affirmed.

All concur.