Finney v. Raudabaugh
Missouri Court of Appeals
Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge. (1) Plaintiff, by waiving the contract and suing in tort, could not deprive the defendant of any right he would' have had if the suit had been brought on the contract. If the suit had been brought on the contract, defendant could have filed, as a counterclaim, any demand relating to the contract upon which he could have instituted an independent suit at the time. McCuin v. Frazier, 38 Mo.
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Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge. (1) Plaintiff, by waiving the contract and suing in tort, could not deprive the defendant of any right he would' have had if the suit had been brought on the contract. If the suit had been brought on the contract, defendant could have filed, as a counterclaim, any demand relating to the contract upon which he could have instituted an independent suit at the time. McCuin v. Frazier, 38 Mo. App. 63. (2) A counterclaim may be interpleaded as a defense whether plaintiff’s action be for tort or upon contract, if it arises out of the same…
1Opinion of the CourtSturgis, 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 *249allegations 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…
Also in this document: Concurrence.
2Cases cited6 opinions
- Barnes v. McMullinsSupreme Court of Missouri · 1883
- Caldwell v. RyanSupreme Court of Missouri · 1908
- Ruth v. McPhersonMissouri Court of Appeals · 1910
- State ex rel. Hinde v. United States Fidelity & Guaranty Co.Missouri Court of Appeals · 1909
- Miller v. CriglerMissouri Court of Appeals · 1900
1 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Hoshaw v. FentonMissouri Court of Appeals · 1937
- Crosby v. MurrayArizona Supreme Court · 1922