McCuin v. Frazier
Missouri Court of Appeals
Appeal from 'the Cass Circuit Cotort. — Hon. Chas. W. Sloan, Judge. (1). The last item of defendant’s counter-claim being for damages in trespass, not growing out of. or connected with, the subject of plaintiff ’ s action, was not properly allowed by the court.
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Appeal from 'the Cass Circuit Cotort. — Hon. Chas. W. Sloan, Judge. (1). The last item of defendant’s counter-claim being for damages in trespass, not growing out of. or connected with, the subject of plaintiff ’ s action, was not properly allowed by the court. R. S. 1879, sec. 3522; People v. Dennison, 84 N. Y. 272; Barnes v. McMullin, 78 Mo. 260. (a) Though this last item of counter-claim is sp+ up in the form of an account and pleaded in assumpsit, its true character cannot be escaped. It sounds in tort, and does not grow out of a contract. Chandler t). Childs, 42 Mich. 128: Carey n.…
1Opinion of the CourtSmith, P. J.
This suit originated before a justice of the peace, and was based upon an account for §32.50, for work and labor, and the hire of three mules.
*65The defendant filed the following set-off:
“To pasturing forty-three head of cattle of plaintiff ’ s during the season of 1887, as per contract therefor, at fifty cents per head. .. $21 50
“To pasturing thirty-two head of cattle and thirty head of horses and mules of plaintiff’s from April 1, to June 15, 1887, at fifty cents per head per month............. 77 50
“ Total amount due defendant...... $101 00”
The defendant recovered judgment for $2.75, from…
2Cases cited4 opinions
- Margrave v. AusmussSupreme Court of Missouri · 1873
- Saxton v. AllenSupreme Court of Missouri · 1872
- Finlay v. BrysonSupreme Court of Missouri · 1884
- Weiss v. WahlMissouri Court of Appeals · 1878
3Cited by2 opinions
- Storts v. MillsMissouri Court of Appeals · 1902
- Frowein v. Calvird & LewisMissouri Court of Appeals · 1898