45 S.E. 577 | N.C. | 1903
It is alleged in the complaint that the defendant executed his notes, aggregating $1,000, payable to the plaintiff. That on the same day he executed to the plaintiff a mortgage on certain personal property therein described, which mortgage was duly recorded. That, although past due, no part of the notes have been paid. That the defendant wrongfully and unlawfully withholds the possession of said property, although the plaintiff has demanded the same; that at the institution of this action the plaintiff procured from the clerk a requisition for the immediate possession of said property, etc. The prayer for judgment is that the plaintiff be declared the owner and entitled to the possession of said property, and "for such other and further relief as it may be entitled to under this complaint in law and equity."
The defendant, answering, admitted the material averments in the complaint, and for "further answer" set up two causes of action against *244 the plaintiff by way of counterclaim. He says that he entered into two contracts with the plaintiff, by one of which he was to furnish and the plaintiff was to accept certain timber, and by the other the plaintiff was to deliver and he was to haul to the plaintiff's mill certain logs; that although he has performed so far as he was permitted, and is ready, willing, and able to fully perform his part of said contracts, the plaintiff has failed and refused to perform, etc.; that by reason of such failure he has sustained damage.
He further says that while he was sick the plaintiff used eight mules belonging to him, and by improper treatment injured his mules, (289) whereby he sustained damage.
The plaintiff demurred to both of said counterclaims, for that the cause of action set forth in the complaint is in tort, while the causes of action set forth in the answer by way of counterclaim arise out of contract. His Honor overruled the demurrer as to the first counterclaim, and sustained it as to the second. He further ordered a reference. To the judgment and the order of reference the plaintiff duly and in apt time excepted and appealed. The defendant not having appealed, the ruling of his Honor upon the second counterclaim is not before us.
We construe the complaint, in the light of the facts set forth, without regard to the specific prayer for judgment, as fixing the character of the action in contract. It seeks to recover the amount alleged to be due on the notes set out and possession of the property mortgaged, to the end that it may subject the same to sale for the purpose of paying said judgment. This judgment prayed for is incidental to and in aid of the primary right — the collection of the debt. Thus construed, we can see no reason why the defendant may not set up and have his counterclaim passed upon, to the end that the dealings between the plaintiff and himself may be settled and their rights adjudged in one action. The plaintiff says that the defendant entered into a contract with it and promised to pay $1,000; that he failed to do so. This is a breach of contract. The defendant says this is true, but that the plaintiff entered into a contract with him and failed to perform its obligations in that respect. This is a breach of contract. The plaintiff says this is all true, but that these matters cannot be settled in one action, because one cause of action is in tort and the other in contract. But little progress towards the simplification of the science of pleading and the settlement of counterclaims in one action will have been made by our reformed (290) procedure if this cannot be done in this case. It is very clear that his Honor was correct in overruling the demurrer. The language of Smith, C. J., in Cotton v. Willoughby,
We concur with his Honor's judgment upon the demurrer, but we are of the opinion that no order of reference should have been made in the condition of the pleadings. The reply of the plaintiff may interpose pleas in bar of the defendant's counterclaim, or it may appear that no reference is necessary. The cases fixing the practice in regard to the time at which a reference should be made are collected in Clark's Code, sec. 421 (1). It is not clear whether the order made by his Honor directs a compulsory reference. It is important that when a reference is ordered for any of the reasons set forth in section (291) 421 and the several subsections, it should appear clearly and affirmatively that the court acts upon the authority found in said section, and that the exception to the order should conform to the ruling of this Court in Driller Co. v. Worth,
Modified and affirmed. *246
(292)