Barker v. Walbridge

In an action brought before a justice of the peace, by a landlord against bis tenant, to recover possession of rented premises, for nonpayment of rent, and removed by appeal to the district court, an appeal to this court, will lie from the judgment of the district court. A debtor holding his creditor’s over due promissory note has no right to tender it in payment of his debt. In this action the note is not an equity within the third subdivision of Sea. 79, Cthap. 66, General Statutes, unless it be shown that there is no adequate remedy by an action on it. In this action the note is not a counter claim, under the first or second subdivision of Section 80 of the same chapter. When a party asks leave to amend his pleading, he must inform the court in what particular he desires to amend it, otherwise there is nothing for the court to exercise its discretion upon.

An appeal is taken in this case, by defendant, from an order of the district court for Steele county, denying his motion for a new trial, after verdict for plaintiff. The case is fully stated in the opinion of the court. The note should have been admitted in evidence, as the tender of a creditor’s own. over-due notéis equivalent to a tender in money. 2 Parsons on Contracts, 154, note “ a, ” ; Folly vs. Mason, 6 Mcl., 37. It is on this principle that our whole law of set-off is based. The plaintiff cannot, by changing his form of action, deprive the defendant of his right of set-off or counter claim. The right of set-off or counter claim does not depend upon the form of action, but on the nature of the demands. The test is, if a suit can be maintained on the contract for the recovery of money, the defendant may have the benefit of a counter claim, and the plaintiff, by seeking a different ‘remedy, cannot deprive him of this right. Folsom vs. Carli, 6 Minn., 420 ; 15 Wend., 51; 5 John, 105 ; 1 Fast., 375 ; Myers vs. Burns, 35 N. Yl, 269 ; laylor’s Landlord and Tenant, sec. 495, and oases cited in note 1 to that section. Our courts of law may exercise equity jurisdiction, and not only should the court have permitted the answer to have been amended, if it was defective, but should have admitted the note, as well, in furtherance of justice, as it should also have been admitted as a counter claim. See note 1 above cited; 6 Minn., 420 ; 12 Minn., 221, and especially 227 et seq., Rev. Stat., 450, sec. 1. The statute of set-off and counter claim is intended to diminish litigation and consolidate actions, not to disperse them — is intended to include all actions arising ex contractu. 6 Mvnn., 353 ; 12 Minn., 227, et seq. / 2 Ker., 165, 6-8. The complaint alleges rent due. The answer denies it, and sets up the plaintiff’s own note as a defense or counter claim. Simple justice would require that it be allowed. Rev. Stat., p. 460, sec. 79. The note not being denied must stand admitted. R. S., 461, sec. 84. The demand- for rent is simply an indebtedness, nothing more. It is liquidated in amount. So is the note. Here is an issue formed. What is it ? Simply this : Hoes the tenant owe the lessor ? The natu,re of the debt is not the issue, nor is it of the essence of the issue. 9 Wis. R., 160 ; Atwater vs. Schench, 9 Wis., on the top of page 166. The question being in this case, whether the lessee is indebted to the lessor, for rent, and it being determined in this action that he is, when an action is brought on the lease to recover the rent, how can the question be again litigated ? "Would not this suit be a bar to any defense we might interpose ? It would be between the same parties. It would be the same question. Would anything be a defense except payment, after this adjudication? And would it not be even questionable whether we could sustain an action on the note ? 1 Denio, 33 ; 2 Seld., 6 N. Y., 37. The note is a counter claim in this action and should have been admitted as such, and the court should have so charged. Sub-div. 3, sec. 79, p. 460, R. S., under which relief, equitable or otherwise, shall be granted. See section 80, on page 460, R. S. What objection to allowing it as counter claim?. It avoids multiplicity of suits, and the spirit of that statute is to avoid circuity of action. 13 Wis., 522 ; 14 id., 54 ; 20 id., 381, particularly on page 388 of that ease ; and see Blair vs. Claxton, 18 N. Y., 529. . The court should have received the note in evidence in furtherance of justice. The answer was sufficient, and if not he should have permitted an amendment. He had the power to do so, but did not permit the amendment because he supposed he did not possess the power. Rev. Stat., p. 463, sec. 104 ; id. 485, sec. 246; Audubon vs. Excelsior Ins. Co., 27 N. Y., 216, particularly 219 ; Lawrence vs. Vilas, Above cited in 20 Wis. R., on page 388. I. — The proceedings under the forcible entry and detain-er act are of a special and statutory character, unknown at the common law, are necessarily summary, and no appeal lies unless expressly conferred by statute. The statute authoi--izes an appeal to the district court only, resembling, in this respect, the mill-dam act and the charter of the Minnesota Central E. E., under both of which this court has held that the only method of reaching this court is by certiorari. /Seos. 13, 14 and 16, Chap. 84, Gen. Stat. / Craig’s Special Proceedings, 461; McNamara vs. Minn. Cent. R\j Co., 12 Minn., 388 ; Minn. Cent. Sy Co. vs. McNamara, 13 Minn., 508 ; Faribault vs. Nulett, 10 Minn., 30 ; Turner vs. Sol-ieran, 11 Minn., 253. II. — Most of the cases cited by defendant have no application to the case at bar, being merely cases illustrating the character of the counter-claim as allowed by the code. In the case at bar, no counter-claim nor equitable defense of any kind was pleaded, the answer presenting the simple question, whether tender upon the day the rent became due, and subsequently bringing into court, not gold or silver coin nor legal tender currency, but the promissory note of the lessor, was a sufficient performance of the covenant in the lease, so as to prevent the condition of re-entry from attaching. This issue we were prepared to meet, but we were not presumed to be prepared to meet a new and altogether different issue, for the first time tendered by an amendment offered after the trial had commenced. Hence, the court, in the exercise of a sound discretion, refused to permit an amendment. From rulings within the discretion of the court no appeal lies unless for its abuse. III. — But if this were a proper subject of review, or a counter-claim had been pleaded in the first instance, the promissory note set forth in the answer could by no means have been pleaded as a counter claim in this action. 1st, Because the provisions of the code do not apply to special proceedings of this nature, and the matters which may be pleaded in defense are expressly prescribed by the statute, viz., matters of excuse, justification and voidance. Sec. 18, Chap. 84, Gen. Stat. 2d, The code, if applicable, has not effected any radical change in the law, or subverted the ancient rules of pleading, but simply modified the modes of seeking the remedy. It has embraced in its provisions set off, recoupment and equitable set off or whatever matters could prior to the code have been made the subject of a cross bill. The note in suit certainly could not be pleaded as a set off ; the action is not one of contract, but is a special proceeding to remove a tenant. A set off can only be pleaded in suits for money demands. It cannot be pleaded as a counter-claim or as an equity or equitable set off, because it does not arise out of, nor is it in any manner connected with the same transaction. Secs. 79, 80, p. 460, Gen. Stat. ; Van Santvoord's Pleadings, 664-5-6, 545 ; Peed vs. Bank of Hewburg, 1 Paige Ch., 215; Folsom vs. Carter, 6 Minn., 420 ; Edgerton vs. Page, 20 N. V., 281 ; Burns vs. Bevins, 27 Barb., 493 ; Patterson ns. Richards, 22 Barb. 143. 3d. The only real question in the case is, is the tender of the promissory note of the lessor on the day rent became due a performance of the conditions in the lease as to payment of rent, or is the failure and refusal to pay rent otherwise than by such note, a breach of the condition authorizing the lessor to re-enter. Upon this question there would seem to be no doubt; nothing but gold or silver coin or legal tender notes could satisfy the condition. Taylor on Landlord and Tenant, 393-4 ; Prest., dbc., Hallowell do Augusta Bank vs. Howard, 13 Mass., 234 ; Gareyvs. Bancroft, 14 Pick. 315 ; Tuttle vs. Tompkins, 2 Wend., 408.