11 S.C. 337 | S.C. | 1879
The opinion of the court was delivered by
In this case the plaintiff brought his action upon an account, to which the defendant pleaded a counter claim, based upon the allegation that he had paid to plaintiff $25 for an ox, which the plaintiff warranted as fit for the purpose for which it was bought, which warranty was alleged to have been broken. For this breach of warranty, the defendant claimed damages as a counter claim, and the only question raised here is whether the defendant could set up such a counter claim to the plaintiff’s action. There is no pretence that the cause of action upon which the counter claim was based arose “ out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim,” nor is there any pretence that it was connected with the subject of the action.
If, therefore, it is sustainable at all, it must be under the second subdivision of Section 173 of the code of procedure, as being a cause of action arising on contract. It seems that there was evidence tending to show that the defendant had bought the ox in the summer of 1873, from the plaintiff, upon his representation that the ox had not been brought from the mountains that season, and that but for such representation he would not have bought; whereas, in fact, as the referee found, the ox “ had been brought from the mountains during the summer of 1873, and, by reason of having been so brought, it died of distemper
In this case, as we have seen, (he defendant might, upon “ the principles of law independent of the new procedure,” treat the cause of action upon which his counter claim is based either as a tort, by bringing an action on it, in the nature of an action on the case for a deceit, or he might waive the tort and sue upon the contract; and it is very obvious, from the form in which the counter claim is pleaded, that he has done the latter, and has elected to sue for the breach of warranty. Hence, according to the proposition laid down by Pomeroy, which he says is established by the overwhelming weight of authority, the defendant was legally entitled to set up the counter claim pleaded by him in this case.
It is argued, however, that there was no warranty, nothing but a mere representation, and, therefore, the defendant’s counter claim could not be said to be a cause of action arising on a contract. In 1 Pars, on Cant. *580, it is said “ any distinct assertion or affirmation of quality made by the’ owner during a negotiation for the sale of a chattel, which it may be supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or constituting a warranty.” And again: “ It is certain that the word warrant need not be used, nor any other of precisely the same meaning. It is enough if the words actually used import an undertaking on the part of the owner that the chattel is what it’is represented to be, or
It was also insisted that the counter claim could not be admitted, because it was based upon a claim for “unascertained damages,” and this view would seem to be sustained by certain language used in Gibbs v. Mitchell, 2 Ray 351. But that case has, in this respect, been modified by the recent case of Haynes v. Prothro, 10 Rich. 318, in which it was expressly held that unascertained damages arising ex contractu are admissible as a set-off, and it is there said that so much of the casé of Gibbs v. Mitchell as announced a contrary doctrine was a mere dictum, and was of no authority. So that even prior to the adoption of the code of procedure this objection could scarcely be sustained. ■ Since the code, however, we do not see how there can be a question upon the subject, for if the counter claim is based upon a cause of action arising on a contract, by the express terms of that statute it may be pleaded to an action on a contract, whether the •damages be liquidated or unliquidated, ascertained or unascertained. Accordingly in Pomeroy on Rem., § 798, y». 817, it is said: “ It may be stated as the universal rule that, in an action on contract to recover debt or unliquidated damages, the defendant may counter claim debt or damages arising on another contract, whether such damages are unliquidated or ascertained.”
The judgment of the Circ.uit Court is set aside and a new trial ■ordered. New' trial granted.