counterclaim instruction in Missouri

1966It may be that the mere failure to mention the plaintiff’s main instruction and its hypothesis of the humanitarian doctrine is not the sole test of the correctness and validity of a defendant’s counterclaim instruction, but that was not the problem in Banks v. Koogler, (Mo.) 291 S.W.2d 883 .

1964It may be that the mere failure to mention the plaintiff’s main instruction and its hypothesis of the humanitarian doctrine is not the sole test of the correctness and validity of a defendant’s counterclaim instruction, but that was not the problem in Banks v. Koogler, (Mo.) 291 S.W.2d 883 .

1966Not only is instruction 1 not mentioned, instruction 4 does not negative its applicability, ‘and (defendant) was not guilty of any negligence as submitted in other instructions.’ Dixon v. Edelen, (Mo.) 300 S.W.2d 469, 474 .

1964Not only is instruction 1 not mentioned, instruction 4 does not negative its applicability, “and (defendant) was not guilty of any negligence as submitted in other instructions.” Dixon v. Edelen, (Mo.) 300 S.W.2d 469, 474 .

1984And, in Kaspar v. Keller, 466 S.W.2d 326 (Tex.Civ.App.1971), where a mortgagee failed to file a counterclaim on a note in a suit brought by the mortgagor to rescind a contract for sale of real estate, the court expressly held that the failure to assert the counterclaim did not bar a subsequent foreclosure as provided in the deed of trust: [T]he mortgagor should not be permitted to destroy or impair the mortgagee's contractual right to foreclosure under the power of sale by the simple expedient of instituting a suit, whether groundless or meritorious, thereby compelling the mortgagee to abandon

1984And, in Raspar v. Keller, 466 S.W.2d 326 (Tex.Civ.App.1971), where a mortgagee failed to file a counterclaim on a note in a suit brought by the mortgagor to rescind a contract for sale of real estate, the court expressly held that the failure to assert the counterclaim did not bar a subsequent foreclosure as provided in the deed of trust: [T]he mortgagor should not be permitted to destroy or impair the mortgagee’s contractual right to foreclosure under the power of sale by the simple expedient of instituting a suit, whether groundless or meritorious, thereby compelling the mortgagee to abandon

1979The primary guide to proper characterization of a pleading as a “defense” or “counterclaim” is the pleader’s intent, for Rule 55.08 provides that “. . . [W]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleadings as if there had been a proper designation.” Particularly instructive in this connection is the observation of our preceptor in Brush v. Miller, 208 S.W.2d 816 , 821 (Mo.App.1948), that: “. . . [B]y such a defense [as purely defensive recoupment] the defendant does not deny the contract and the plaintiff’s per

1966In Wilson v. Tonsing, Mo., 375 S.W.2d 140, 1 . c. 143, the Missouri Supreme Court had the same thing under consideration and they made the following statement: “In submitting the defendant’s counterclaim instruction 4 does not mention or refer in any manner to instruction 1 and the humanitarian hypothesis upon which recovery is permitted plaintiff.

1966Day v. Brandon, Mo., 394 S. W.2d 405 ; § 537.080, RSMo 1959, V.A.

1966Day v. Brandon, Mo., 394 S.W.2d 405 ; § 537.080, RSMo 1959, V.A.M.S.

1951But as to the proof of the oral contract declared on in the counterclaim it is the rule that, “in order to establish an oral contract of adoption * * * the claimant child has the burden of producing evidence so clear, cogent and convincing as to leave no reasonable doubt in the chancellor’s mind.” Westlake v. Westlake, (Mo. Sup.) 201 S. W. (2d) 964 , Benjamin v. Cronan, 338 Mo. 1177 , 93 S. W. (2d) 975 .

1951But as to the proof of the oral contract declared on in the counterclaim it is the rule that, “in order to establish an oral contract of adoption * * * the claimant child has the burden of producing evidence so clear, cogent and convincing as to leave no reasonable doubt in the chancellor’s mind.” Westlake v. Westlake, (Mo. Sup.) 201 S. W. (2d) 964 , Benjamin v. Cronan, 338 Mo. 1177 , 93 S. W. (2d) 975 .

1926It surely cannot be seriously contended that such a fraudulent assignment can in any wise affect the right of the defendant to set up any and every legal defense to which he was before entitled. [Baker v. Brown, 10 Mo. 396 ; Martindale v. Hudson, 25 Mo. 422 .] We find no reason, either in the statutes or the decisions, why the court should allow the plaintiff judgment for the amount of the assigned demand sued on in this action, and thus enable the assignor *Page 632 to enforce collection of a demand upon which it could not have recovered judgment if it had itself brought suit thereon, and sen

1926It surely cannot be seriously contended that such a fraudulent assignment can in any wise affect the right of the defendant to set up any and every legal defense to which he was before entitled. [Baker v. Brown, 10 Mo. 396 ; Martindale v. Hudson, 25 Mo. 422 .] We find no reason, either in the statutes or the decisions, why the court should allow the plaintiff judgment for the amount of the assigned demand sued on in this action, and thus enable the assignor *Page 632 to enforce collection of a demand upon which it could not have recovered judgment if it had itself brought suit thereon, and sen