Church v. Jones

Hart, J., (after stating the facts). The court told the jury that it was the contention of Church that, at the time of the execution of the note sued on, he and Jones had a full and complete settlement of their accounts. That, on the other hand, Jones admitted the execution of the note, and that the amount sued for had not been paid; but he claimed that Church owed him more than the amount of the note, and denied that they had had a full settlement of their accounts at the time the note was executed. In other instructions the court submitted the respective theories of the parties to the jury. The court gave to the jury instructions Nos. 3 and 4, which read as follows: “The burden of proof is on defendant to show by a preponderance of the evidence that the plaintiff owes him on his counterclaim, so in this case your verdict will be for the plaintiff for the amount of the note, less any credit you may find, from a preponderance of the evidence, to be due on said note, and, if you find that the plaintiff owes the defendant more than the amount of said note sued on, you will find for the defendant against the plaintiff for the amount you may find from the evidence the plaintiff owes the defendant in excess of the amount of the said note. “No. 4. The burden of proof is on the party alleging things to be true, to establish it by preponderance of the evidence; therefore the plaintiff in this case says that there was a full settlement at the time of the execution of this note; they allege that to be true, therefore the burden would be on them to establish that to be true by a preponderance of the evidence.” • It is the contention of counsel for appellant that the instructions are contradictory, and, for that reason, the judgment must be reversed. We cannot agree wilh counsel in this contention. Section 1195 of Crawford & Moses’ Digest defines a counterclaim as any cause of action in favor of the defendant against the plaintiff. Section 6236 of the Digest provides that, in any case where a set-off or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear. This section was a part of our Civil Code, and § 1195, defining a counterclaim, was passed by the Legislature of 1917. Thus it will be seen that the pleading of a counterclaim, with the demand for relief, is, in effect, the institution of a cross-action for a recovery under the facts set up in the counterclaim. Although the matters set up in the counterclaim constitute a defense to plaintiff’s cause of action, it is also of a nature that entitles the defendant to affirmative relief, so that he might have brought an action on it in the first place. In short, pleading the counterclaim in this suit was, in effect, the instituting of a cross-action, and the part of the answer alleging it is in the nature of a complaint by the defendant against the plaintiff. As such, the defendant is entitled upon it to any relief consistent with the case made and embraced within the issue. This is the effect of our decision in Coats v. Milner, 134 Ark. 311. In that case the court said that the manifest purpose of the Legislature in defining a counterclaim was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of' the same or different contracts or whether they arise upon contract or arise out of some tort. In the case before us, Jones admitted the execution of the note sued on and that there was a balance due upon the note in the amount sued for. Jones said that he executed the note in order to accommodate. Church, and that it was expressly understood that afterwards there should be a settlement of their affairs, and that tbe one owing the other would pay him. Jones sought affirmative relief against Church. In this view of the matter we do not think that there was any necessary conflict between the two instructions. Tbe only disputed question of fact was whether or not Jones was entitled to recover on his counterclaim. The court placed the burden upon him in this respect in instruction No. 3; and, in instruction No. 4, intended to tell the jury that, if the plaintiff relied upon the fact that there had been a full settlement at the time tbe note was executed, as a defense to the counterclaim, the burden was on him to show it. This instruction evidently had reference to the trial of the issue on the counterclaim, and, if the defendant thought otherwise, he should have made a specific objection to the instruction. Tbe court had already told the jury. that Jones admitted tbe execution of the note, and that the amount sued on was due and unpaid, and he only defended the suit and asked for affirmative relief by way of counterclaim upon the theory that there was a balance due him in the settlement of their partnership affairs, and the note was executed for the accommodation of Church, and that he was entitled to an affirmative judgment against Church. It is well settled in this State that the court will only reverse a judgment for prejudicial errors, and we are of the opinion that, in the absence of a specific objection, it cannot be said that the instruction was necessarily prejudicial. It follows that tbe judgment will be affirmed.