The plaintiff became the defendant's landlord by reason of the purchase of the farm on which defendant lived as a renter. The suit was begun in the justice court wherein plaintiff filed a petition asking for $44.70 due as rent. An answer was filed consisting of a counterclaim for damages in which it is alleged that defendant was in quiet and peaceable possession of the premises and that plaintiff wrongfully ejected him, and by force and without due process of law prevented him from gathering his corn and pasturing his stalk field. Judgment went for defendant in the justice court and plaintiff appealed to the circuit court, where defendant's counterclaim was amended in that it alleged that the plaintiff appropriated defendant's corn to his own use and drove defendant's stock from the premises.
The jury found for plaintiff in the sum of $30, and for defendant on his counterclaim for $85. Judgment was rendered for the difference of $55 for defendant, and from this judgment plaintiff appealed. *Page 333
It is assigned as error that the amended counterclaim filed in the circuit court was a different cause of action from that pleaded in the justice court. We cannot agree to this contention where it is charged that one by force wrongfully prevents the owner of property from getting it and it remains in the wrongdoer's possession, it is not stating a different cause of action to add to that charge, by amendment, that the wrongdoer has appropriated it to his own use, — both amount to a conversion.
Defendant charges that the instruction is broader than the pleading, in that it permitted a recovery for some cowpeas. The answer to this is that the evidence as to the cowpeas went in without objection and this feature of defendant's property was treated throughout the trial by both parties the same as the corn and "stalk field." We do not deem the objection material to the rights of the parties.
It is lastly asserted that there could be no counterclaim filed in this case, the plaintiff's cause of action being for rent on contract and defendant's cause being in tort. It is true that a tenant cannot file a counterclaim based on the landlord's tort in a suit by the landlord for rent on a contract where the act of the landlord does not amount to an eviction. [Dimmock v. Daly,9 Mo. App. 354; Gray v. Gaff, 8 Mo. App. 329; Landers v. Schneider, 165 S.W. 872, and cases therein cited.]
The act of the landlord in the case at bar amounts clearly to an actual eviction, and therefore a breach of the implied covenant of quiet enjoyment which formed a consideration for the rent paid. Where the act of the landlord is tortious it may be set up as a counterclaim in a suit for rent where such act amounts to an actual eviction breaching the implied covenant of quiet enjoyment. [Dolph v. Barry, 148 S.W. 196; Thayer-Moore Brokerage Co. v. Campbell, 147 S.W. 545.]
Finding no substantial error in the trial of the case the judgment is affirmed. Cox, P.J., and Bradley, J., concur. *Page 334