2. Action, § 32* — what is distinction between action in contract and in tort. An action in contract is for the breach of a duty arising out of a contract express or implied, while an action of tort is for the breach of a duty imposed by law.3. Action, § 35* — when action construed as in contract. If it is not clear to which class an action belongs, whether contract or tort, the action will ordinarily be considered as one in contract.4. Justices oe the peace, § 269* — when counterclaim properly interposed. The counterclaim of the defendant, a subcontractor, for hauling gravel at the request of the contractor, interposed before the trial in the County Court, after appeal from the justice court, of an action by the contractor for damages for injury to the building due to water running into the basement because of the failure of defendant to remove gravel from the premises, and for extra expense for labor and deprival of use of the premises, was properly presented and litigated under section 19 of the Justices and Constables Act (J. & A. 1f 6915), requiring a statement of set-off in writing before trial, even though plaintiff’s action may have been in tort, where plaintiff did not object to the counterclaim when filed, did not object on that ground to the evidence in support of it, but at the close of all the evidence made a motion that the “evidence of defendant be stricken from the record, as a set-off, with reference to the payment” for the gravel, which motion was overruled, and in his bill of exceptions entitled the cause as “Assumpsit,” and in his brief recited the acts of defendant upon which he based his claim and said that they were in violation of defendant’s contract.
