Hoffman v. Building Const. Co. , 204 Mo. App. 539 ( 1920 )

This suit was instituted in the circuit court of the city of St. Louis, on the 16th day of May, 1916. The petition is in two counts. The first count alleged an agreement on the part of plaintiff to sell and of defendant to purchase, one Simon crusher with bin and screens and all fittings for the sum of eight hundred dollars; one Ledgewood engine and boiler No. 233234, cylinder 10 × 12 with all fittings, said engine and boiler to be in working order, for the sum of five hundred dollars; one 8 × 15 Mundy engine and boiler, with all fittings comlete, same to be in working order, for the sum of four hundred dollars, the delivery and acceptance of said machinery; the payment of eight hundred and fifty dollars thereon, and that the balance of eight hundred and fifty dollars was due, praying judgment therefor. The second count was on quantum valebant, in which the reasonable value of the machinery was placed at the contract price.

The answer admitted defendant's incorporation; that plaintiff agreed to sell and defendant agreed to buy the machinery described in the first count of the petition, at the price therein alleged; admitted the payment of eight hundred and fifty dollars on account of said contract; denied that in accordance with said contract plaintiff duly furnished to defendant all of the said machinery therein described, and that it accepted the same from plaintiff, and further answering averred that the Ledgewood boiler was not delivered to defendant in working order; that parts of said boiler were rusted and worn; that if it had been in working order it would have been worth the sum of two hundred dollars, but that it was wholly worthless for any purpose. Further answering it averred that the Mundy engine was not delivered to defendant in working order and with all fittings complete; that parts of the engine and parts of the complete fittings therefor were missing, and that defendant was compelled to purchase said parts and adjust said parts and fittings to said engine, and that by reason of the fact that certain parts of said engine and the complete fittings therefor were not delivered to defendant by plaintiff, the value of said engine was decreased in the sum of fifty dollars. In the answer it was further averred that the Ledgewood engine was not delivered in working order and with fittings; that parts of said engine and parts of the fittings therefor were missing, and that defendant was compelled to purchase said parts and provide the necessary work and labor to fasten and adjust said parts and fittings to said engine, and that by reason of certain parts of said engine and fittings therefor not being delivered by plaintiff to defendant, the value of said engine was decreased in the sum of seventy-five dollars: "Wherefore, defendant says there is now due plaintiff from defendant only the sum of five hundred and twenty-five dollars, for which sum, interest and costs defendant consents that judgment be entered against it."

The answer to the second count of the petition was a repetition of the averments of the answer to the first count. The reply was a general denial.

A jury was waived, and the case tried before the court on the 14th of May 1917, and by the court taken under advisement until the June term, whereupon the following findings and judgment were entered:

". . . and the court being now at this day fully advised of and concerning the premises, doth find the issues joined, upon the first count of the petition, in favor of the plaintiff, and against the defendant; and doth assess the plaintiff's damages, at the sum of $525, with interest thereon at the rate of six per cent per annum, from September 27, 1915, amounting to $44.95, making in the aggregate, the sum of $569.95; and doth further find the issues joined, upon the second count of the petition, in favor of the defendant.

Wherefore, it is considered and adjudged by the court, that the plaintiff take nothing by the second count of his petition; that the defendant be discharged, and go hence without day, as to said second count.

The court doth further consider and adjudge, that the plaintiff have and recover of the defendant the sum of five hundred and sixty-nine and 95/100 dollars ($569.95), together with the costs of this suit, and that execution issue therefor."

No effort was made at the trial to prove the difference, if any, in the value of the machinery in the condition contracted for, and its value as delivered, with the exception of the boiler. Defendant's evidence tended to prove that the boiler would have been worth two hundred dollars had it corresponded with the description in the contract, and that as delivered it was wholly worthless. With reference to the other machinery, certain parts were either replaced or added thereto, and some changes made in connection therewith; and the bills rendered therefor, amounting to one hundred twenty-one dollars and forty-nine cents were admitted in evidence without objection. The aggregate of the sums sought to be recouped, is thus fixed by defendant's evidence at three hundred twenty-one dollars and forty-nine cents, while its answer claims an aggregate of three hundred and twenty-five dollars. If we surmise that the learned trial court in awarding plaintiff only five hundred and twenty-five dollars (exclusive of interest) on the first count of the petition purposed to allow defendant three hundred and twenty-five dollars by way of recoupment, then such allowance is not in mathematical accord with the proof.

Appellant contends that the finding of the court does not dispose of all of the issues in the case because the items of recoupment pleaded are in effect counter-claims and no finding was made with reference thereto.

Preliminary to a determination of this question, we desire to observe that the matters pleaded by defendant are not to be classed as set-offs under our code. Section 1866, Revised Statutes 1909, provides, ". . . one debt may be set off against the other . . .," and as none of the matters pleaded by defendant constituted a debt, but in reality were claims for unliquidated damages, they do not constitute set-offs. [Mahan v. Ross,18 Mo. 121; Johnson v. Jones, 16 Mo. 494; The State, to the use of Cowan, v. Modrell et al., 15 Mo. 421; Scarritt Estate Co. v. Arms Co., 110 Mo. App. 406, 86 S.W. 489; Schropp v. Pearl Laundry Co., 217 S.W. (Mo. App.) 862.]

The defendant, in addition to uniting a general and specific denial, was authorized under our code (section 1806, R.S. 1909) to plead in the same answer "a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition."

The counterclaim "must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and 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 the plaintiff's claim, or connected with the subject of the action . . . The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both." (section 1807, R.S. 1909.)

Plaintiff's answer was a plea of new matter. Was it new matter constituting defenses or counterclaims? Does it go only to defeat plaintiff's cause of action by pleading facts that do not appear in the petition, but which show plaintiff suffered no wrong, notwithstanding the facts alleged in the petition; or does it plead facts which give defendant independent causes of action against plaintiff and which might have been prosecuted independent of plaintiff's suit? If the first it states new matter as a defense; if the latter, it is new matter constituting counterclaims. If counterclaim, it appears from the quoted portion of said section 1807 that it may be pleaded in this case. We are of the opinion that defendant's answer sets up new matter not as a defense, but as counterclaims to plaintiff's cause of action, claims which defendant might have prosecuted against plaintiff independent of any suit instituted by plaintiff.

It will not suffice to say that defendant merely seeks to recoup the amounts pleaded in its answer, for what was designated as recoupment prior to the adoption of our code is now embraced in the code term "counterclaim." Such demands as defendant pleaded were proper subjects of counterclaim. [Pomeroy's Code Remedies (4 Ed.), section 6, page 835 et seq.; Bliss on Code Pleading (3 Ed.), chapter 17, page 490 et seq.; Hay v. Short,49 Mo. 139; Gordon v. Bruner, 49 Mo. 570; Brokerage Co. v. Campbell,164 Mo. App. 8, 147 S.W. 516.]

Now the judgment of the circuit court in the instant case should be for plaintiff for the amount allowed upon his cause of action in excess of the amounts allowed defendant on its counterclaim; and the findings of the court upon which such judgment is based, to be technically accurate, should include a finding and determination of the amounts, if any, awarded the defendant on each of its counterclaims. Where, however, the counterclaims arise "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," and it is apparent from the findings and record presented that the court (or jury) necessarily considered and passed on the issues raised on all the causes of action stated in the pleadings, a failure to make a specific finding on each cause of action so stated, does not constitute reversible error. Such is the status of this case. [Cosgrove v. Stange, 194 Mo. App. 14, 183 S.W. 691; Lindsey v. Nagel, 157 Mo. App. 128, l.c. 140, 137 S.W. 912.]

It appears from the evidence offered on behalf of defendant that many items for parts and fittings together with the expense of fastening and adjusting them to the purchased machinery, were for utilization of the machinery in pile-driving work, a use different from that in which it was formerly used and for which fittings were provided, namely, cableway work. Such items should not have been allowed because not coming within the purview of the contract; and since the pleadings admitted the contract, the finding for plaintiff should have been for the full contract price, diminished only by such sums as might be properly allowed on the counterclaims. It follows that the judgment for plaintiff was not for the full amount to which he was entitled, and that it constitutes reversible error.

In view of the above and foregoing, the commissioner recommends that the judgment of the trial court be reversed and the cause remanded.