Gardner v. Risher

¶1The opinion of the court was delivered by

¶2This action originated in a justice’s court. Subsequently, it was appealed to the district court, and there, upon the trial, the parties waived a jury and submitted the' case to the court, with the request that the court find the facts specifically and state its conclusions of law thereon. This was done. The facts found are substantially these: On February 25, 1884, Israel D. Risher, plaintiff below, executed to Herman Litzkie two notes for fifty-five'dollars, due in two and six months respectively, and bearing interest at twelve per cent, per annum from date; to secure the payment of these notes, Risher executed to Litzkie a mortgage upon a cow—the property replevied in this action — which provided, among other things, that if the indebtedness was not paid when due, the mortgagee might take the property and sell it at public or private sale. It was further provided therein that until default should be made, the property should remain in the actual possession of the mortgagor. Risher paid $61.68 upon the notes. On February 20, 1884, Risher and Litzkie entered into a contract whereby Litzkie agreed to furnish to plaintiff 115 head of cattle to be herded by the plaintiff during the herding season of 1884; Litzkie wholly failed to furnish any cattle to be herded under his contract, and Risher sustained damages by reason of the breach thereof in the sum of $85. On October 6,1884, after such damages had accrued to Risher, Litzkie took possession of the cow embraced in the mortgage, claiming the right so to do by virtue thereof. At this time, Risher notified Litzkie that on account of the damages which *97had accrued to him by reason of the breach of the contract before mentioned, the mortgage debt was fully satisfied, and thereupon he demanded the surrender of the notes and mortgage. Litzkie refused to assent to the claim of Risher, but sold the property, which was of the value of $30, at private sale, to John R. Gardner, the defendant below, who was present when Litzkie took the mortgaged property and had notice from Risher that he was the owner of the' cow, and that the mortgage debt was satisfied as above stated. Subsequently, Risher brought his action in replevin against Gardner to obtain possession of the cow.

¶3i. unliquidated damages, when aset-off. The $61.68 which Risher had paid upon the notes secured by the mortgage, together with the $85 claimed by him as damages by reason of the breach of the contract upon the part of Litzkie, greatly exceeded the balance due upon the notes and mortgage. The question in the case therefore is, whether Risher had the right to off-set against the notes and mortgage the damages he claimed against Litzkie. We think he had the right to off-set his damages, and that Litzkie ~ .. . ... . ,, • acted at his peni in taking the cow. The only claim he had to the cow was under the mortgage, and his interest in the property depended upon the amount due him from the mortgagor, after deducting all payments and legal off-sets. His claim, therefore, was founded on contract, and in this state any cause of action arising from contract, whether* it be for a liquidated demand or for unliquidated damages, constitutes a set-off against any action founded on contract. (Civil Code, §§94, 98; Stevens v. Able, 15 Kas. 584.) The law relating to set-offs in this state has.been broadened to embrace claims not recognized as such by the laws of many other states; hence, the cases of Gates v. Smith, 2 Minn. 30; Keightley v. Walls, 24 Ind. 205; and Warner v.Comstock, 22 N.W. Rep. 664, do not apply.

¶4Gardner purchased the cow with notice of Risher’s rights. His defense, or rather his claim, in the action was founded upon the notes and mortgage executed by Risher to Litzkie. Tf nothing was due upon the notes and mortgage, or if Risher *98had a valid off-set to the same at the time Litzkie took possession of the cow, then Gardner obtained no title or right thereto, if Bisher’s set-off was relied upon and pleaded by him in any action or proceeding founded upon the notes and mortgage. Section 100 of the civil code provides;

“When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counter-claim or set-off could have been sét up, neither can be deprived of the benefit thereof by the assignment or death of the other ; but the two demands must be deemed compensated so far as they equal each other.”

¶5leféatéaSy assignment. ( Leavenson v. Lafontane, 3 Kas. 523; Turner v. Crawford, 14 id. 499; Sponenbarger v. Lemert, 23 id. 55.) So here, Bisher cannot be deprived of the benefit of his set-off on account of the sale or transfer of the . , .. .. mortgaged property to Gardner, who had lull knowledge of Bisher’s set-off at the time he purchased.

¶6The judgment of the district court will be affirmed.

¶7I do not concur. Under our statutes a set-off can only be pleaded in an action founded on contract. (Civil Code, § 98.) This was an action of replevin, which is in the nature of a tort, and is founded upon the wrong of the defendant and not upon contract. I think, therefore, that the adjudication of a claim between the plaintiff and defendant’s vendor in this action was erroneous. ■