Cox v. Volkert

Black, J. — Huegel, Wallendorf, and Blume, were partners in the milling business, and as such partners built the Pacific Mill in Jefferson City. Wallendorf died, and his executrix, and the other partners, leased the mill to defendant, Yolkert, for a period of four years from September 1, 1878. Huegel and Blume filed their petition in the circuit court, the object of which was to procure an accounting, sale, and division of the partnership property, in which suit the executrix and devisees of Wallendorf, and the defendant herein, were made defendants. By consent of all the parties in that suit, Cox was appointed receiver. The defendant, the lessee, paid some six hundred dollars on the lease, and the receiver brought this suit to recover a balance of .gome one thousand and two hundred dollars rents, alleged to be still due on the lease. [511] 1. It is wholly immaterial whether section 3660, Revised Statutes, conferred upon the circuit court authority to appoint a receiver or not. That court had original jurisdiction in all matters of equity. The power of the court to appoint a receiver in the settlement of partnership affairs, is beyond all question. 1 Story’s Equity, sec. 672; Adam’s Eq. 517; Collyer on Part. 353. .This power is inherent in the court, and not dependent upon any statute. No statute deprives the court of that power; hence it had the authority to make the appointment in this case. Whether the court properly exercised the power, cannot be inquired into in this proceeding. The appointment gave the receiver “ full power to collect the rents, take care of and preserve the same.” This is sufficient authority to collect the rents to become due after the appointment, as well as to collect those due at the date of the appointment. He brought this suit in the court by which he was appointed and prosecutes the same with its sanction, and that is sufficient without producing any express order so to do. 2. Much of the amended answer was stricken out on the ground of alleged inconsistency in this, that it both admitted and denied the execution of the leaser This is a misconception of the purpose and scope of the pleading. It expressly admits that defendant made the lease. This admission must be understood to run through the whole defence, and all parts of the answer. Besides, the counter-claims are based upon the provisions of the lease, and thus, again, its execution is conceded. The fact that defendant may plead the legal effect of the lease differently from the plaintiff does not deny the execution of the lease. The appointment of the receiver did not affect the defendant’s rights under the lease. 2 Dan. Ch. Pr., 1407, note 2; 2 Barb. Ch. Practice (2. Ed.) 659. Whatever defences, counterclaims, or set-offs, defendant would have had in a suit by the lessors on this lease, are available to the lessee in [512] a suit by the receiver. The receiver can occupy no better position than those for whom he acts and is appointed. His right to collect the rent is subject to all the conditions of the contract, and to all defences springing therefrom. Hence it follows that any failure on the part of the lessors to, perform their part of the contract may be pleaded by the defendant. While the lease is no part of the pleadings, still the-bill of exceptions asks the court to consider the lease in determining the sufficiency of the answer, and this we do, as the cause must be remanded for a new trial. By the terms of the lease the defendant agreed to repack the engine, re-build the fire-front to the boiler, put up a new smoke stack, and put in certain designated machinery, at his own expense, and. turn the same over in good repair at the expiration of the lease, and pay sixty dollars per month rents. The lessors agreed to keep the boiler to the engine in good repair, at their expense. Improvements other than those before mentioned, made by the defendant, he has the right to remove. A further stipulation is that, if by reason of any defect in the boiler, the mill should stop running, then the lessee is to pay no rent during such ■ time, and he is to have deducted from the rents all moneys expended in the repair of the boiler. If it becomes necessary to have a new boiler, the same is to be furnished by the lessors, and if the parties disagree as to whether a new boiler is absolutely necessary, or not, the question shall be decided by referees, appointed by the parties in the usual way. Prom these stipulations it is plain that if the mill stopped running on account of a defective boiler, then, for the time of all such delays the defendant should not be charged with rents, and he should also be allowed for all amounts expended in making repairs upon the boiler. All that portion of the answer setting up these matters should not have been stricken out. [513] It is also alleged that on the eighteenth of September, 1878, the boiler proved to be wholly defective, and could not be repaired so as to furnish sufficient power to run the mill; that the lessors refused to select any referee to determine the question of the sufficiency of the boiler, and thereupon defendant put in a new boiler and had the same in place by the first of October, 1878, at' a cost of $514. If all this be true, in point of fact, the lessee had a right to get a new boiler and charge a reasonable cost thereof to the lessors, and may plead this and should be allowed therefor. In this connection it may be stated that what the boiler inspector of St. Louis said is wholly immaterial as a matter of pleading. His evidence would of course, be competent and relevant on the issues of the condition and fitness of the boiler, but what he said and did have no proper place in the pleading, and this much of the answer might well enough be eliminated, for it presents an immaterial issue. The plain issue here is, was it necessary to have a new boiler in-order to furnish power to carry on the business of the mill. If it be shown that the lessors refused to join in the selection of referees, then they cannot avail themselves of a want of determination of the sufficiency and fitness of the old boiler by referees. The proof of the insufficiency of the boiler, and the refusal of the lessors to join in the selection of referees, gives the defendant a right to recover for the cost of the new boiler. If the lessors, by their neglect, prevented the selection of referees, they cannot take advantage of such wrongful act. Smith v. Railroad, 36 N. H. 458; Hotham East India Co., 1 Term R. 638. If the defendant undertook to put in a new boiler, he should have put in one reasonably fit for the service. If he did this he would be entitled to reasonable repairs on the new one, for it became the property of the lessors, and he only did what they should have done under the lease. He pleads repairs to the new boiler to the [514] extent of $781.42. It- is not easy to see how the new boiler could cost this amount for repairs, if it was reasonably fit for the service. All these questions, however, can be submitted to the court or jurors, as the case may be tried, upon proper instructions, and the foregoing remarks will be a sufficient guide therefor. It need scarcely be added that the defendant will not be entitled to any rental for the new boiler, and that portion of the answer should be stricken out. That portion of the answer designated in the record as “bracket 9,” viewed in the light of the lease, should also be eliminated. It seeks to recover the alleged decline of price on six thousand bushels of wheat during the time the new boiler was being put in, when it is alleged, but for the defective boiler, defendant would have manufactured the wheat into flour, and sold the same, and thus saved the loss. The contract contemplates that the boiler might become wholly useless. In that event the lessors would have had a reasonable time in which to put in a new one. Had they done so, the measure of the damages, under the terms of the lease, would have been a reduction of the rents during the time the mill was idle. Defendant at once put in a boiler, and his measure of damages must be the cost thereof, and reduction of rents. Had he stood upon the lease, and refused to make the needed additions, we need not say what his measure of damages would have been, for that state of the case is not presented by the record. The motion to strike out parts of the answer should have been sustained only to the extent before indicated. The judgment is reversed, and the cause remanded for new; trial, in accordance with this opinion, and the pleadings will be made to conform hereto. The other judges concur.