COX, P. J.
Replevin for possession of a saw mill and damages for misuse. Counterclaim for damages filed as an offset by defendants. Verdict for plaintiff for possession of the saw mill with no damages assessed and a verdict for defendants on their counterclaim for $589.97. Judgment in plaintiffs’ favor for possession of the saw mill and a money judgment in defendants’ favor against plaintiff for $589.97. Defendants have not appealed from the judgment in plaintiffs’ favor for possession of the property. Plaintiffs have appealed from the money judgment against them.
The controversy in this case grew out of the following facts: Plaintiffs were the owners of 400 acres of timber land in Carter County and were desirous of having the timber sawed into railroad cross ties and lumber. They sold to defendants the saw mill involved in this action and in payment therefor took their note for $1150 due one day after date with a chattel mortgage on the saw mill as security. At the same time and as a part of the same transaction, the plaintiffs and defendants entered into a contract in writing by the terms of which defendants bound themselves to saw the lumber on the 400 acres of land owned by plaintiffs into ties and lumber and plaintiffs were to pay them $8 per. thousand feet therefor. The mortgage on the saw mill contained the following clause: “The parties of the second part agree that the party of the first part shall hold back the sum of Two Dollars ($2) per thousand (1000) of all lumber cut until the party of the first part shall receive in full payment of One-Thousand-One-Hundred-Fifty Dollars ($1150) and interest, the price of said mill fur
nished by the said party of the first part.” The written contract by which plaintiffs employed defendants to saw the timber on their land contained the same clause. Defendants had sawed 71,834 feet prior to January 5, 1921, and plaintiffs had paid therefor $514.64 and had applied $60.03 on the note. This paid for all that was sawed at that time. Plaintiffs on January 5, 1921, filed this suit in replevin for possession of the mill. The property was taken away from the possession of the defendants under the writ of replevin and delivered to plaintiffs. Afterward and before trial, the plaintiffs advertised and sold the mill under the chattel mortgage.
The petition was in the usual form alleging that plaintiffs were the owners and entitled to the possession of the property; that it was wrongfully withheld by defendant and had been damaged by misuse and asked judgment for possession of the property and damages.
The answer set up the fact that defendants had purchased a certain saw mill from plaintiffs and had executed their note therefor due one day after date and had executed a chattel mortgage to secure same, then pleaded that at the same time and as a part of the same transaction, the contract by which they were employed to saw the timber on plaintiff’s land was executed and pleaded a breach of that contract by plaintiffs in that they had on January 5, 1921, taken possession of the mill and converted same to their own use without giving defendants a reasonable time in which to saw the timber on the 400 acres of land described in the contract and alleged that by reason of that breach and the defendants being prevented thereby from sawing the remainder of the timber, they lost profits amounting to $2400, and asked judgment for that amount. The answer did not ask a return of the property nor an assessment of its value.
Plaintiffs filed a reply admitting a sale of the saw mill to the defendants and the execution of the contract pleaded by defendants as a part of the same transaction, then alleged that defendants had failed to make pay
ments on the note of $2, per thousand of lumber sawed and that defendants had failed to manufacture the lumber with dispatch and diligence and denied every other allegation of the answer.
It will be observed that by the pleadings, the parties have agreed that the sale of the mill and the execution of the note and chattel mortgage and the execution of the contract by which defendants had agreed to saw the timber on plaintiffs’ land was all one transaction. The proof showed the same thing. The jury returned two verdicts. One for the plaintiffs as follows: “We, the jury, find the issues for the plaintiffs for the return of the saw mill all equipment thereto belonging” signed by ten jurors. The other verdict was for defendants and is as follows: “We, the jury, find the issues for the defendants and assess their damages at $589.97,” signed by the same ten jurors. Neither of these verdicts can stand for they are directly opposed to each other. If plaintiff had the right to recover possession of the property, then defendants could recover nothing: If defendants were entitled to recover damages then plaintiff was not entitled to possession of the property. For the defects in these verdicts, the entire judgment will have to be reversed.
In view of another trial, we deem it best to express our views on what appears to us to be the issues attempted to be raised by the answer and reply. This record presents a peculiar situation. The petition is in the usual form and prays judgment for recovery of the property and damages. The answer does not deny plaintiffs’ right to recover possession of the property, but alleges that they had bought a certain saw mill from plaintiffs and given a note for the purchase price due one day after date, and a chattel mortgage on the mill to secure the same, then pleads the contract by which they were employed to saw timber for plaintiffs, and a breach of that contract by plaintiffs and asks for damages on that account. Defendants do not allege that the mill they bought from plaintiffs and on which
they had given the chattel mortgage, was the same mill that plaintiffs had taken from them; neither do they charge that plaintiffs took the mill under the writ of replevin in this case. The evidence, however, showed both of these facts.
Defendants’ claim for damages cannot be upheld as a counterclaim in this case as they attempted to assert it because it did not exist at the time the suit of plaintiffs was filed against them. A counterclaim cannot be based on a right of action that accrued to a defendant after suit was begun against him. [Statutes 1919, sec. 1233; Meinche v. Brocksiesk, 14 Mo. App. 319; Todd v. Crutsinger, 30 Mo. App. 145; Reppy v. Reppy, 46 Mo. 571; Iler v. National Bank, 69 Mo. App. 64; Second Baptist Church v. Beecham, 180 S. W. 1065; Jansen v. Dolan, 157 Mo. App. 32, 137 S. W. 27.] If defendants had any right of recovery for damages as claimed in their answer it was as special damages resulting from a wrongful taking of the mill by plaintiffs in this suit and not as a counterclaim.
We think the note and chattel mortgage and the contract to saw the timber was all one transaction as stated by the parties in their pleadings in this case. That being true the plaintiffs’ right to take possession of the property and foreclose their mortgage depended on whether the terms of the mortgage had been violated in some respect other than by a failure to pay the note, or whether the defendants were complying with the terms of the contract in sawing the timber.
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COX, P. J.
Replevin for possession of a saw mill and damages for misuse. Counterclaim for damages filed as an offset by defendants. Verdict for plaintiff for possession of the saw mill with no damages assessed and a verdict for defendants on their counterclaim for $589.97. Judgment in plaintiffs’ favor for possession of the saw mill and a money judgment in defendants’ favor against plaintiff for $589.97. Defendants have not appealed from the judgment in plaintiffs’ favor for possession of the property. Plaintiffs have appealed from the money judgment against them.
The controversy in this case grew out of the following facts: Plaintiffs were the owners of 400 acres of timber land in Carter County and were desirous of having the timber sawed into railroad cross ties and lumber. They sold to defendants the saw mill involved in this action and in payment therefor took their note for $1150 due one day after date with a chattel mortgage on the saw mill as security. At the same time and as a part of the same transaction, the plaintiffs and defendants entered into a contract in writing by the terms of which defendants bound themselves to saw the lumber on the 400 acres of land owned by plaintiffs into ties and lumber and plaintiffs were to pay them $8 per. thousand feet therefor. The mortgage on the saw mill contained the following clause: “The parties of the second part agree that the party of the first part shall hold back the sum of Two Dollars ($2) per thousand (1000) of all lumber cut until the party of the first part shall receive in full payment of One-Thousand-One-Hundred-Fifty Dollars ($1150) and interest, the price of said mill fur
nished by the said party of the first part.” The written contract by which plaintiffs employed defendants to saw the timber on their land contained the same clause. Defendants had sawed 71,834 feet prior to January 5, 1921, and plaintiffs had paid therefor $514.64 and had applied $60.03 on the note. This paid for all that was sawed at that time. Plaintiffs on January 5, 1921, filed this suit in replevin for possession of the mill. The property was taken away from the possession of the defendants under the writ of replevin and delivered to plaintiffs. Afterward and before trial, the plaintiffs advertised and sold the mill under the chattel mortgage.
The petition was in the usual form alleging that plaintiffs were the owners and entitled to the possession of the property; that it was wrongfully withheld by defendant and had been damaged by misuse and asked judgment for possession of the property and damages.
The answer set up the fact that defendants had purchased a certain saw mill from plaintiffs and had executed their note therefor due one day after date and had executed a chattel mortgage to secure same, then pleaded that at the same time and as a part of the same transaction, the contract by which they were employed to saw the timber on plaintiff’s land was executed and pleaded a breach of that contract by plaintiffs in that they had on January 5, 1921, taken possession of the mill and converted same to their own use without giving defendants a reasonable time in which to saw the timber on the 400 acres of land described in the contract and alleged that by reason of that breach and the defendants being prevented thereby from sawing the remainder of the timber, they lost profits amounting to $2400, and asked judgment for that amount. The answer did not ask a return of the property nor an assessment of its value.
Plaintiffs filed a reply admitting a sale of the saw mill to the defendants and the execution of the contract pleaded by defendants as a part of the same transaction, then alleged that defendants had failed to make pay
ments on the note of $2, per thousand of lumber sawed and that defendants had failed to manufacture the lumber with dispatch and diligence and denied every other allegation of the answer.
It will be observed that by the pleadings, the parties have agreed that the sale of the mill and the execution of the note and chattel mortgage and the execution of the contract by which defendants had agreed to saw the timber on plaintiffs’ land was all one transaction. The proof showed the same thing. The jury returned two verdicts. One for the plaintiffs as follows: “We, the jury, find the issues for the plaintiffs for the return of the saw mill all equipment thereto belonging” signed by ten jurors. The other verdict was for defendants and is as follows: “We, the jury, find the issues for the defendants and assess their damages at $589.97,” signed by the same ten jurors. Neither of these verdicts can stand for they are directly opposed to each other. If plaintiff had the right to recover possession of the property, then defendants could recover nothing: If defendants were entitled to recover damages then plaintiff was not entitled to possession of the property. For the defects in these verdicts, the entire judgment will have to be reversed.
In view of another trial, we deem it best to express our views on what appears to us to be the issues attempted to be raised by the answer and reply. This record presents a peculiar situation. The petition is in the usual form and prays judgment for recovery of the property and damages. The answer does not deny plaintiffs’ right to recover possession of the property, but alleges that they had bought a certain saw mill from plaintiffs and given a note for the purchase price due one day after date, and a chattel mortgage on the mill to secure the same, then pleads the contract by which they were employed to saw timber for plaintiffs, and a breach of that contract by plaintiffs and asks for damages on that account. Defendants do not allege that the mill they bought from plaintiffs and on which
they had given the chattel mortgage, was the same mill that plaintiffs had taken from them; neither do they charge that plaintiffs took the mill under the writ of replevin in this case. The evidence, however, showed both of these facts.
Defendants’ claim for damages cannot be upheld as a counterclaim in this case as they attempted to assert it because it did not exist at the time the suit of plaintiffs was filed against them. A counterclaim cannot be based on a right of action that accrued to a defendant after suit was begun against him. [Statutes 1919, sec. 1233; Meinche v. Brocksiesk, 14 Mo. App. 319; Todd v. Crutsinger, 30 Mo. App. 145; Reppy v. Reppy, 46 Mo. 571; Iler v. National Bank, 69 Mo. App. 64; Second Baptist Church v. Beecham, 180 S. W. 1065; Jansen v. Dolan, 157 Mo. App. 32, 137 S. W. 27.] If defendants had any right of recovery for damages as claimed in their answer it was as special damages resulting from a wrongful taking of the mill by plaintiffs in this suit and not as a counterclaim.
We think the note and chattel mortgage and the contract to saw the timber was all one transaction as stated by the parties in their pleadings in this case. That being true the plaintiffs’ right to take possession of the property and foreclose their mortgage depended on whether the terms of the mortgage had been violated in some respect other than by a failure to pay the note, or whether the defendants were complying with the terms of the contract in sawing the timber. By the contract the plaintiffs had agreed that the note, which on its face was due one day after date, should be paid by sawing lumber and making payments out of what was coming to them for that service, and after having done that they could not foreclose the mortgage as long as defendants were complying with the contract.
The evidence shows that plaintiffs gave bond and took possession of the property and prior to the trial had sold it under the chattel mortgage. The property was therefore gone and could not be produced either at or
after the trial. Under the facts as shown in this record defendants’ right to claim any damages depended on the taking of the property by plaintiffs being wrongful, and to have any standing in court they must deny plaintiffs ’ right to possession of the property. If the right of plaintiffs to possession is denied and defendants should win on that issue, then, since plaintiffs had sold the property their acts amounted to conversion and defendants would have the right to have the value of the property assessed as of the date it was taken. [Willison v. Smith, 60 Mo. App. 469; Rosentretor v. Brady, 63 Mo. App. 404; Wetsbay v. Milligan, 74 Mo. App. 179, 182; Jones v. Jones, 188 Mo. App. 220, 234, 135 S. W. 227; Forsee v. Zenner, 193 S. W. 975, 979.]
In assessing the value it should be confined to the value of defendants’ interest therein, which would mean their interest over and above the amount due on the purchase price, if any. In other words, if plaintiffs’ taking of the property was wrongful, then they should be charged with the full value of the property at the time they took it and defendants should be charged with what was still due and unpaid on the note given for the purchase price. If defendants should win as above stated on the question of the right of plaintiffs to possession of the property and could further show that they had been damaged as claimed by not being permitted to finish sawing the lumber they would be entitled to a further credit on that account. All these things should be taken into consideration and a balance struck between the parties and if the balance should be in favor of plaintiffs they would still be entitled to recover although their taking of the property was wrongful, but if the balance should be found to be in defendants’ favor then they should recover for that amount. If it should be found that plaintiffs had the right to take possession of the property the defendants could not recover for any damages and there would be no occasion to. strike any balance.
The entire judgment, both in favor of plaintiffs and defendants, is reversed and the cause remanded.
Farrington, J.,
concurs;
Bradley, J.,
concurs in separate opinion.