
    W. P. Gantt et al., Respondents, v. P. W. Duffy et al., Appellants.
    St. Louis Court of Appeals,
    May 4, 1897.
    Promissory Note: counterclaim nor damages ex delicto. In a. suit on a promissory,note or contract, damages arising out of tort can not be set up as a counterclaim or set-off. B. S. 1889, sec. 2050.
    
      Appeal from the Audrain Circuit Court. — Hon. E. M. Hughes, Judge.
    Aeeiemed;
    Judge Bland concurring, Judge Bigg» dissenting.
    
      Charles R. McFarlane and W. W. Fry for appellants.
    Issues are made by the pleadings, and not by declarations of counsel in the opening statement to the jury. R. S. 1889, secs. 2118, 2120, 2121.
    Opening statements of counsel as to facts he expects to prove on the trial have not the force of a binding admission. Russ v. R. R., 112 Mo. 45.
    Plaintiff’s case is based upon a contract, a note-given for the rent of a farm, and defendant’s claim arises “out of the contract or transaction or connected with the subject of the action.” R. S. 1889, sec. 2050.
    By this section “in an action arising on contract” the right of counterclaim is given a defendant to plead “any other cause of action arising also on contract and existing at the commencement of the action.” In such case it is immaterial whether defendants’ claim i» liquidated or unliquidated. Oreen v. Conrad, 114 Mo. 651, 667; Kamerich v. Castleman, 23 Mo. App. 481; 
      Empire Co. v. Boggiano, 52 Mo. 294; Barnes v. McMullen, 78 Id. 260, 273.
    Value of crops may be recouped against note for purchase price of land. Cordon v. Bruner, 49 Mo. 570; Emery v. B. B., 77 Id. 339; Brockhaus v. Schilling, 52 Id. 73; McAdoiv v. Boss, 53 Id. 199; Bitchie v. Hayward, 71 Id. 560.
    
      E. S. Gantt for respondents.
    Defendants, in their answer and counterclaim sue' for a total of $287, which is beyond the jurisdiction of a justice of the peace. R. S. 1889, secs. 6122, 6142. See, also, Emery v. B. B., 77 Mo. 349; Beed v. Snodgrass, 55 Id. 180.
    No counterclaim was filed in the justice’s court, and it was error to plead it in the circuit court. R. S. 1889, sec. 6346. Oldham v. Henderson, 4 Mo. 295.
    In an action upon a promissory note, damages arising out of a different transaction and constituting a cause of action ex delicto can not be set up as a counterclaim. Wilkerson v. Farnham, 82 Mo. 672; Hyde v. Hasel, 43 Mo. App/670; Barnes v. McMullens, 78 Mo. 260; Emery v. B. B., 77 Id. 339.
    A plea of counterclaim, which does not state the transaction out of which arose a certain item, is not sufficient to warrant the introduction of evidence thereto. Fulton v. Stahl, 17 Mo. App. 475.
    An unliquidated claim may be pleaded as a counterclaim to plaintiff’s cause of action, provided it arises out of the contract or transaction set forth in the petition, or where the counterclaim is connected with the subject of the action. McAdow v. Boss, 53 Mo. 206. See, also, Gordon v. Bruner, 49 Mo. 571.
   Bond, J.

This action was begun by filing before a justice of the peace a note made by defendants payable to plaintiffs for $393, dated January-, 1895, payable on or before' January 1, 1896, credited with $203.02 on January 24,1896, and $40 on February 7, 1896. Upon a trial before the justice defendants had judgment for $75 and costs, though neither the transcript of the justice, nor the accompanying papers show that any offset or counterclaim was filed in that court. Upon plaintiff’s appeal to the circuit court they introduced the note in evidence and rested. Thereupon defendants offered evidence tending to show that plaintiffs had received'$203.02 as the proceeds of a sale of broom corn belonging to defendants, and had accounted for this sum, but that the corn was sold at less than its market value, wherefore defendants claimed a further credit equal to the difference between the price paid for the corn and its alleged market value. This evidence was objected to by plaintiffs, for the reason that the answer of defendants and their oral statement showed that the damages claimed were unliquidated and arose out of a tort not connected with plaintiffs’ cause of action. This objection was sustained. Neither the record proper nor the bill of exceptions in this case contains any answer, counterclaim or set-off filed by defendants. It is well settled that to enable the defendant to rely on a set-off or counterclaim, in a case like the present, it must appear that a statement of such set-off or counterclaim was filed before trial in the justice’s court. R. S. 1889, secs. 6138-6205, 6346,6347. Stephens v. Koken Barber Supply Co., 67 Mo. App. 587. The briefs of counsel on both sides contain an answer on behalf of defendants, which claims damages for the alleged failure of plaintiffs to account for the full value of certain corn. Respondents’ brief states that the answer in question was amended in the circuit court after verdict, without leave, so as to reduce the amount •claimed therein within the jurisdiction óf the justice of the peace, and that the record shows that the answer itself was not filed in the justices’ court. It is not necessary in this case to rest our decision on the failure of the record to show the filing of a counterclaim before the justice, since the ruling of the trial court is well supported by the reason given that the damages claimed arose out of tort, and were therefore not proper matter of set-off or counterclaim against plaintiffs’ action on a contract. R. S. 1889, sec. 2050. The bill of exceptions recites that the effect of the answer or counterclaim was to demand damages arising m delicto, since it states that defendants’ oral statement to that effect conformed to their answer. Hence it is clear that the evidence was properly excluded, and that there was no error in directing a judgment for plaintiffs for the balance due on the note.

The judgment is affirmed.

Judge Bland concurs; Judge Biggs dissents.  