The record does not disclose the ground on which plaintiff’s demurrer ore tenus was interposed or sustained. So far as appears, it was directed to Gulf’s three causes of action, collectively. The question debated here, and presumably in the court below, is whether Gulf’s causes of action are permissible counterclaims under G.S. 1-137. This opinion deals solely with that question.
Under G.S. 1-137, “A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action,” in favor of a defendant and against a plaintiff “between whom a several judgment might be had in the action,” is a permissible counterclaim.
In determining whether Gulf’s alleged counterclaims are permissible, we must accept as true the facts alleged therein.
Whether Gulf wrongfully terminated the contract of 1 May, 1947, as an overt act in furtherance of the alleged conspiracy, as asserted by plaintiff, or whether plaintiff terminated said contract and also his lease of Gulf’s bulk plant in furtherance of a scheme to discontinue his relationship with Gulf and to engage in business as a distributor for another oil company, as asserted by Gulf, this is clear: Determination of the respective rights and obligations of plaintiff and Gulf (1) with reference to the termination of their contract of 1 May, 1947, (2) with reference to their relationships with dealers in and customers for Gulf products, and (3) with reference to installations made to .facilitate the handling of Gulf’s products, while their contract was in effect and also upon termination thereof, lies at the center of this controversy.
While plaintiff’s action is in tort, the respective rights and obligations of plaintiff and Gulf arise from and are determined by the contractual relationship subsisting between them.
Pinnix v. Toomey,
As stated by
Stacy, J.
(later
C. J.),
in
Construction Co. v. Ice Co.,
If it be conceded that certain of the alleged defamatory statements would constitute a cause of action, apart from the contractual relationship between plaintiff and Gulf, the answer is that in such case plaintiff has compounded in his complaint, although not separately stated, at least two alleged causes of action.
Heath v. Kirkman,
The conclusion reached thus far is that, if plaintiff’s action were against Gulf alone for the alleged wrongful conduct of its agents, Gulf’s counterclaims are permissible. There remains for consideration the effect, if any, of plaintiff’s allegations as to conspiracy and his joinder of the individual defendants.
Whether the allegations of the complaint are sufficient to support a recovery on account of the alleged wrongful acts of Gulf if plaintiff should fail to establish the alleged conspiracy, is a question we need not decide. See
Manley v. News Co.,
“Accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pur
*272
suance thereof — the damage — not the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable.”
“It would seem that, as to a conspirator who committed no overt act resulting in damage, the basis of his liability for the conduct of his co-conspirators bears close resemblance to the basis of liability of a principal under the doctrine of
respondeat superior
for the torts of his agent.”
Reid v. Holden,
Thus, a plaintiff’s right to recover must be based on overt acts. Whether such overt acts, if established, were committed in furtherance of an alleged conspiracy entered into between two or more persons determines /rom whom the plaintiff may recover, i.e., the identity of the parties who are legally liable for damages resulting from such overt acts. So considered, the alleged overt acts, rather than the existence or nonexistence of the conspiracy, constitutes the foundation of plaintiff’s alleged cause of action.
“All conspirators may be joined as parties defendant in an action for the damages caused by their wrongful act, although it is not necessary that all be joined; an action may be maintained against only one.” 11 Am. Jur., Conspiracy sec. 54. The liability of Gulf is to be determined on the same basis as if it were the sole defendant, either originally or by reason of voluntary nonsuit as to the individual defendants.
Moreover, the liability of conspirators is joint and several. Muse v. Morrison, supra; 11 Am. Jur., Conspiracy sec. 45; 15 C.J.S., Conspiracy sec. 18. Indeed, plaintiff’s prayer is for “judgment against the defendants with j oint and several liability” in the amounts set forth above.
' This question arises: Where the action is joint in form, is it permissible for one of several defendants to allege a counterclaim solely in its favor? The answer is “Yes,” if the liability of such defendant, in respect of plaintiff’s claim, is several, or joint and several.
Decisions in other jurisdictions are collected in two annotations:
In 80 C.J.S., Set-Off and Counterclaim sec. 51f, this statement appears: “. . . as a general rule, where action is brought against two or more defendants on a j oint and several demand, or on a several demand, a set-off or counterclaim consisting of a demand in favor of one of them against plaintiff may, if otherwise without objection, be inter *273 posed; and it is immaterial in such case that the action is joint in form, . . .”
In 47 Am. Jur., Setoff and Counterclaim sec. 56, this statement appears: “In many jurisdictions, the availability as a setoff or counterclaim of a demand against the plaintiff, in an action at law, in favor of less than the whole number of defendants depends on whether the defendant or defendants having such claim are severally liable to the plaintiff, or are liable jointly with the other defendant or defendants to the suit. If a several judgment may be entered against such defendant or defendants, then, in these jurisdictions, a claim in his or their favor against the plaintiff or plaintiffs is available as a setoff or counterclaim. This rule has been made statutory in a number of states. A common form of statute provides that a counterclaim must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment may be had in the action.” It is noted that G.S. 1-137 so provides.
If the counterclaim is otherwise permissible, and the liability of the defendant who asserts it is several, or j oint and several, the mere form of plaintiff’s action should not and does not operate to deprive such defendant of the statutory right to interpose such counterclaim. We approve the rule stated in the foregoing quotations from Corpus Juris Secundum and American Jurisprudence. It appears that this rule was applied in
Shell v. Aiken,
If Gulf is liable as a conspirator for wrongful acts in furtherance of the alleged conspiracy, its liability is several as well as joint, that is, Gulf is liable to -plaintiff for the full amount of plaintiff’s recovery. If Gulf prevails on all or any of its counterclaims, a several judgment as between plaintiff and Gulf, may be entered, adjudicating their rights and liabilities inter se. G.S. 1-222.
For the reasons stated, we conclude that the causes of action alleged by Gulf are permissible counterclaims; and that the judgment from which this appeal was taken must be reversed.
This disposition of the appeal makes unnecessary a consideration of appellant’s contentions: (1) that plaintiff, having replied thereto, could not thereafter challenge by demurrer ore tenus Gulf’s right to allege said causes of action as counterclaims; and (2) that Judge Craven had no jurisdiction, by reason of a prior ruling by Judge Sea-well on plaintiff’s motion to strike, to pass upon the question presented by plaintiff’s demurrer ore tenus.
Reversed.