4 Indian Terr. 124 | Ct. App. Ind. Terr. | 1902
The only error assigned by appellant in this case is that the court erred in sustaining the demurrer to the second paragraph of defendant’s answer. The pleadings are not clear as to whether the transactions between the parties were embraced in a single contract, cóvering both years, or in two contracts, — one for the year 1897, and one for the year 1898; but from the whole tenor of the pleadings we take it that there was a separate'contract for each year. But whether this be correct or not, as far as the question in this case is concerned, the result •would be the same. The wheat was destroyed by fire while threshing out the crop of 1897. The answer alleges by way of counterclaim that while the plaintiff was engaged in carrying out his contract for threshing out his wheat for that year, he negligently set fire to it, which destroyed 1,000 bushels, to his damage $700. The acts of negligence alleged are that the fire originated in the separator of the machinery being used by plaintiff; that the same had not been properly oiled and looked after, and was negligently and carelessly run. The action was commenced before the Commissioner’s Court, and defendant prayed that, because of the limited jurisdiction of that court, he be allowed to plead damages as a counterclaim or recoupment against plaintiff's demand for the year 1897 to the amount of $100. The sole question is, was the alleged negligent burning of defendant's
“The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiff’s, or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiffs’ claim, or connected with the subject of the action."
“A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court.”
From a reading of the above sections of the statute it will be observed that a set-off can only be pleaded “in an action arising on a contract or ascertained by the decision of a court." But not so with a counterclaim. As to that, any demand of the defendant against the plaintiff, 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, may' be pleaded. Does the demand of the defendant in this case, as pleaded by him, arise out of the contract, or out of the transaction as pleaded by plaintiff in his complaint, or is it connected with the subject of the action? If it comes up to either of these requirements, it is well pleaded, and the demurrer should have been overruled; if not, it is not well pleaded, and the demurrer should have been sustained. The contract was that the plaintiff should, for a certain fixed price per bushel, thresh out the crop of 1897, and the whole of it. And this was such a contract that the law implies and writes into it the duty of plaintiff to perform the labor with care and skill. “A perón who undertakes a particular business contracts also, by implication, with his employer, as
We are of the opinion that the court erred in sustaining the demurrer to the amended answer, and therefore let the judgment of the court below be reversed, and the cause remanded.