56 N.W. 133 | N.D. | 1893
This case is no stranger in this court. In various forms it has already been before us several times. 1 N. D. 455, 475, 48 N. W. Rep. 354, 361; 2 N. D. 57, 49 N. W. Rep. 419. On this appeal we have to deal with the rights of the interveners and the plaintiff. The defendants are no longer interested in the contests of the cause. Their liability to the plaintiff and the interveners has been finally established, and now the only strife is between the interveners and the plaintiff over the judgment they have recovered. By their complaint in intervention, the interveners have ingrafted upon the original suit another controversy. In that controversy they have become plaintiffs, and the plaintiff
The right to set up a counterclaim rests upon statute, except in those cases which are peculiar in their nature. In those cases, equity, to prevent injustice, will allow counterclaims which the law ignores. Our first inquiry is whether the defendant Braithwaite has a right to set up this tort as a counterclaim under the statute? This brings us to the statute itself. It provides: “The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff’s claim, or connected with the subject of the action. Seco?id, In an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action.” Section 4915, Comp. Laws. Under the second subdivision, any other cause of action arising on contract would constitute a good counterclaim. It is contended that the defendant Braithwaite had a right to waive the tort involved in the conversion of his interest in the steamboat, and sue in the assumpsit. The averments of the counterclaim would not bring him within the rule that a tort may be waived, as it is
It remains to be considered whether the defendant Braithwaite has elected to waive the tort and sue in assumpsit. The portion of the answer material to this inquiry contains the following averment: “That, notwithstanding the interveners forcibly and wrongfully seized and took possession of said boat, her tackle, apparel, furniture, machinery, papers, books, stores, and merchandise, and forcibly and wrongfully dispossessed the plaintiff of the same, and there and then wrongfully converted the same to their own use at Bismarck, aforesaid.” There are other allegations in the counterclaim, but none of them throw any light upon the subject of the election of. the defendant Braithwaite to waive the tort; nor are there any allegations of a sale of the property by the defendant Braithwaite, or that other interveners undertook or promised to pay for Braithwaite’s interest in the boat the value thereof or any sum whatever. The other averments of the counterclaim, so far as these matters are concerned, might as well have
Having reached the conclusion that the counterclaim was not proper under subd. 2 of §4915, we will now inquire whether it comes within the provisions of the first subdivision. Does the counterclaim arise out of the contract or transaction set forth in the interveners’ complaint as the foundation of their claim to this freight money? The contract which is the foundation of this claim is the written agreement already referred to. The wrongful seizure of the boat does not arise out of that contract. The seizure was independent of that agreement. It had no more connection with the contract than a seizure by a third person would have had. Is it in any manner connected with the subject of the action? The words “subject of the action” are of rather indefinite-significance. In our judgment the subject of the interveners’ intervention is their right to the earnings of the boat under this
Can the counterclaim be sustained as a set off in equity? We
What rights of the defendant under the agreement did it interfere with? This brings us to the second counterclaim. It is for the loss of a year’s wages which it is claimed defendant would have earned had he run the boat as captain under the agreement. But the interveners nowhere in the writing agree to pay the defendant any stipulated wages. He is merely to rec.eive$i50 out of the earnings of the boat. It cannot be said that the parties intended, if defendant ran the boat at a loss, that they should nevertheless pay this salary out of their own means. Nor is there any time specified during which defendant is to receive this salary. If he can recover a year’s pay, why not two years’ pay as well? This claim is founded in a mistaken construction of the agreement. The interveners did not hire defendant to run his
There is another question which was not discusssed, but which may arise on the trial of the issues between the interveners and the defendant. We wish to settle it now to the end that no further appeal need to be taken to settle it in the future. Including this appeal, there have been four appeals in the case. This would seem to be sufficient for one litigation. The question to which we refer is whether there can be an affirmative judgment in favor of defendant Braithwaite in case the evidence should disclose the fact that not only were the interveners not entitled to
The order overruling the demurrer is reversed.
Note: See for other features of this ligation. Rae v. Eclipse, 30 N. W. Rep. 159. The Steamer Eclipse, 135 U. S. 590, S. C. 10 S. C. Rep. 873.