Section 8.15 Counterclaims and Defenses

• Library: Creditors' Remedies (2009 Ed. + 2014 Supp)

D. (§8.15) Counterclaims and Defenses

In a proper case, a counterclaim may be maintained in a replevin action. See:

· Ely v. Sutton, 162 S.W. 755 (Mo. App. E.D. 1913)

· Weber Implement & Auto. Co. v. Ransburg, 274 S.W. 856 (Mo. App. S.D. 1925)

· Boehme v. Roth, 280 S.W. 730 (Mo. App. W.D. 1926)

To constitute a valid defense to the plaintiff's cause of action in replevin, the defendant's counterclaim must arise from the very act that forms the basis of the plaintiff's suit and must directly defeat the plaintiff's right to possession. For example, when a contract is the basis of the plaintiff's replevin action and the counterclaim is based on breach of that very contract, the counterclaim is a valid defensive pleading. McCormick Harvesting Mach. Co. v. Hill, 79 S.W. 745 (Mo. App. E.D. 1904); see also Brown Motor Sales Co. v. Daugherty, 107 S.W.2d 179 (Mo. App. E.D. 1937). On the other hand, a counterclaim alleging a debt for services rendered does not constitute a valid defense to an action to replevin trucks. Riss & Co. v. Wallace, 171 S.W.2d 641 (Mo. 1943). Furthermore, a claim of fraud in the sale of property will not be allowed to defeat the plaintiff's replevin action unless a timely tender has been made. Auffenberg v. Hafley, 457 S.W.2d 929 (Mo. App. E.D. 1970).

A defendant who alleges and proves that the plaintiff has abandoned the property at issue is entitled to have the replevin denied. Wilson v. Dolan, 767 S.W.2d 569 (Mo. App. E.D. 1988). Proof of abandonment shows that the defendant, not the plaintiff, has the superior...