Powers v. Sturgeon

190 Kan. 604 (1962)

376 P.2d 904

GEORGE V. POWERS and PATRICK POWERS d/b/a GREAT BEND CANDY AND TOBACCO CO., Appellants, v. E.C. STURGEON, JR., d/b/a M & S WHOLESALE COMPANY, Appellee.

No. 42,963

Supreme Court of Kansas.

Opinion filed December 8, 1962.

*605 Larry E. Keenan, of Great Bend, argued the cause, and Robert P. Keenan, of Great Bend, was with him on the brief for the appellants.

Douglas B. Myers, of Dodge City, argued the cause and was on the brief for the appellee.

The opinion of the court was delivered by

PRICE, J.:

This was an action on an oral contract for the recovery of money. Plaintiff prevailed under its petition. Defendant prevailed under its cross petition in a less amount. The two amounts were set off against each other and judgment for plaintiff was rendered accordingly. Plaintiff has appealed.

The question involved concerns the right of defendant to assert its cross-petition as a "pure defense" to plaintiff's action.

Plaintiff company is a wholesale candy and tobacco dealer at Great Bend. Defendant company is a wholesale distributor at Dodge City. In 1954 plaintiff and defendant entered into an oral agreement whereby defendant was to purchase cigarettes from plaintiff at a stated price per carton. The parties further agreed that plaintiff would pay to defendant a refund of one cent per carton of cigarettes so purchased. Thereafter defendant ordered cigarettes from plaintiff weekly. The agreement was not to run for a definite period of time and was considered terminable at the will of either party. Plaintiff paid defendant a total of not more than $400 under the one cent per carton refund agreement, the final payment being made in December, 1956, in the sum of $150. The sale and purchase arrangement continued until May, 1961, at which time plaintiff filed this action to recover the sum of $4,535.06, based on defendant's indebtedness for cigarettes and other merchandise so purchased. Defendant cross-petitioned for the sum of $2,962, based on 336,238 cartons of cigarettes purchased by it from plaintiff from August, 1954, to May, 1961, at the rate of one cent per carton refund, less the sum of $400 previously paid by plaintiff.

At a pre-trial conference the court ruled that defendant was entitled to be heard on the "pure defense" as pleaded in its answer and cross-petition. The parties stipulated to the number of cartons of cigarettes purchased by defendant from plaintiff over the period in question, and also to the correctness of the amounts claimed by the parties, if found to be due.

Three special questions were submitted to the jury:

"1. Do you find that the original agreement between the parties contained, as a part of the consideration therefor, an agreement to the effect that defendant

*606

*607

*608 In Malcolm v. Larson, 158 Kan. 423, 148 P.2d 291, it was held:

"In a case where a cross demand is pleaded as a matter of pure defense, it must be connected with and grow out of the same transaction or matter which forms the basis of the plaintiff's claim. (Syl. 2.)

Under the facts found by the jury defendant was, under the provisions of G.S. 1949, 60-715, above, as interpreted in the O'Neil case, above, entitled to assert its claim against that of the plaintiff that is to say, it was entitled to have its indebtedness to plaintiff offset by the amount plaintiff owed defendant arising out of the refund agreement. On the other hand, and assuming, for the sake of argument, defendant's claim be considered as having been barred by the three-year statute of limitations, it appears to be equally clear that under the language of G.S. 1949, 60-313, above, as construed in the Muckenthaler and other cases cited, above, defendant was entitled to assert its claim as a matter of "pure defense," for it is certain that it was connected with and grew out of the same transaction which formed the basis of plaintiff's claim the sale of cigarettes and the agreement for refund.

So, under either theory, a correct result was reached.

We see nothing wrong with the outcome of this lawsuit. Defendant owed plaintiff for cigarettes purchased. Plaintiff owed a less amount to defendant arising out of the refund agreement. The end result was that plaintiff's indebtedness was deducted from the amount of defendant's indebtedness and judgment was entered in favor of plaintiff for the difference all of which was fair, just and equitable.

Other matters urged by plaintiff in its brief have not been overlooked, but, in view of what has been said, require no discussion.

We find no error in the record and the judgment is affirmed.