Finney v. Raudabaugh , 182 Mo. App. 246 ( 1914 )

STURGIS, J.

Plaintiff alleged in his petition that he and defendant were joint owners of some hay, each owning one-half, and that defendant unlawfully and wrongfully converted same to his own use to plaintiff’s damage, etc. Defendant answered, denying these allegations and by way of counterclaim states that plaintiff is indebted to defendant for certain items of money loaned and for seed converted to Ms own use, and this item: “To damages due defendant by reason of plaintiff’s failure to properly tend and cultivate the land of defendant which plaintiff had rented and agreed to cultivate; in the sum of $204.65.” The plaintiff filed a motion to strike out this item, assigning the reason that same “is for unliquidated damages, and is not the subject for counterclaim or set-off herein.” The court sustained this motion and defendant excepted. The answer being freed of this item of the counterclaim, the case was tried without error and to the satisfaction of both sides so far as tMs record indicates, and resulted in a verdict for plaintiff for $52.13 on his cause of action and for defendant on his counterclaim for $12.25. The court rendered judgment for plaintiff for the difference.

The defendant’s motion for new trial complains of only one ground of error, to-wit, the court’s action in striMng out the above-mentioned item of his counterclaim. This is the sole point for our consideration.

Each party relies on our statute with reference to counterclaims which restricts same to those “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 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.” [Section 1807, Revised Statutes 1909!.] It is evident that plaintiff’s action is one sounding in tort, to-wit, for the conversion of personal property; while defendant’s counterclaim is based on a contract, to-wit, an agreement to cultivate land. Under the first subdivision of the statute it is no objection to a counterclaim that plaintiff’s cause of action is for tort and the counterclaim on contract, or vice versa, provided both arise from the same transaction or be connected with the same snbject-matter of the action. If the action and cross action arise from the same transaction, it does not matter that one be legal and the other equitable; that one be for liquidated and the other for unliquidated damages ; or, that one be in its nature ex contractu and the other ex delicto. [Miller v. Crigler, 83 Mo. App. 395, 401; Ruth v. McPherson, 150 Mo. App. 694, 704, 131 S. W. 474; Bowman & Co. v. Lickey, 86 Mo. App. 47, 59.]

In the present case there is nothing to show that the plaintiff’s failure to cultivate land, the subject-matter of the counterclaim, had any connection with defendant’s conversion of plaintiff’s hay. There is certainly no necessary or apparent connection. If there be a connection in fact there is nothing in the pleadings to disclose such fact and the court in sustaining the motion to strike out acted on the pleadings as same were presented to him. Prom the meager evidence given, were that the proper test, it appears that the hay converted did not grow on the land plaintiff agreed to cultivate and the contract to cultivate land for defendant was not made in connection with the hay transaction. The two transactions' are distinct. Defendant’s counterclaim cannot therefore be held proper because growing out of the same transaction which is the subject-matter of plaintiff’s cause of action. [Barnes v. McMullins, 78 Mo. 260, 269.]

Except in cases where the cause of action and counterclaim grow out of the same transaction, our statutes, both as to counterclaims, section 1807, supra, and set-off, section 1866, Revised Statutes 1909, do not give a defendant the right to set up in his answer by way of counterclaim or set-off a demand ex contractu against one ex delicto, or vice versa. With the exception noted, it is only where there are mutual debts that one may be set-off against the other and counterclaims are confined to cases where both the action and cross action arise on contract. [Caldwell v. Ryan, 210 Mo. 17, 25, 31, 108 S. W. 533; State ex rel. v. Fidelity & Guaranty Co., 135 Mo. App. 160, 163, 115 S. W. 1081.] In the Caldwell case, supra, the plaintiff, as here, sued for the conversion of personal property, *an action ex delicto, and defendant sought to set-off a judgment he held against plaintiff, a demand ex contractu. The court said: “The ground on which the set-off should have been denied is that the defendant’s claim is in contract, that is, in judgment, while the plaintiff’s claim is in tort,” and Judge Lamm, concurring in the holding that a judgment held by defendant against plaintiff, being on contract, could not be pleaded by answer as a set-off against an action in tort for conversion of. two mules, very pertinently adds: “If A. sues B. for damages for assault and battery, B. may not by answer set-off a promissory note or a judgment debt against A.’s claim for the tort. ’ ’

Plaintiff’s point is also well taken that, treating the motion to strike out as in the nature of a demurrer, the counterclaim does not as to this item state facts sufficient to constitute a cause of action.

It follows, therefore, that the eourt very properly sustained the motion to strike out and the judgment is affirmed.

Robertson, P. J., concurs. Farrington, J., concurs.