| N.C. | Sep 5, 1888
The defendants had possession of the "Apparatus" in controversy, and if the contract alleged by them as a second ground of defense, exists as alleged, they are entitled to have such possession until the contract shall be observed and performed, first, on the part of the plaintiffs, or until it shall in some way be discharged. It is not void for want of consideration, as contended; the mutual agreement of the parties to do the several things stipulated to be done on the one side and on the other was a sufficient consideration to support it.
It is regular, proper, and very much better in every way, that all pleadings shall be orderly and formal, but the mere form is not generally essential. If sufficient matter is pleaded, the law (285) determines the character and effect of the pleading, without regard to the particular name given it. If the defense in question were not in legal effect a counterclaim well pleaded, the plaintiffs should have demurred to it in apt time, that is, when it was pleaded and *243 before the pleadings were settled and completed. If it were not acounterclaim, a cause of action was alleged irregularly, it is true, but the parties might have litigated it by consent, certainly with the anction [action] of the court, because the court had jurisdiction of the parties and the cause of action.
But if it is granted that a cause of action was not well pleaded as a defense, a sufficient defense arising after the action began was alleged, if the defendants could avail themselves of it in this action. It is contended that they could not, because it arose after the action began. Ordinarily and generally this is true, but in some cases a defense thus arising may be pleaded by answer as in the case of a plea since last continuance by consent of the parties, or by order of the court, with a view to the ends of justice, upon just terms as to costs — as where the plaintiff took possession of the land in controversy after the action began, and like cases. Bailey v. Cochran, 1 Hay, 120 (104); Morgan v. Cone, 1 D. B., 234; Johnson v. Swain, Busb., 335; Thompson v. Red, 2 Jones, 412.
We think that the plaintiffs, by implication, consented to allow the defendants to allege and avail themselves of the defense in question, if it were well founded — at least they waived their right to object on the ground that it arose after the action began. They did not demur to the answer as they might have done — on the contrary they made reply thereto, expressly denying and controverting the defense in question; no objection was raised that it could not be alleged and relied upon in this action until after the pleadings were settled and completed and after the jury were empaneled to try the issue of fact raised by them. It was then too late to raise such objection. There is nothing in the nature of the defense pleaded and relied upon in the (286) pleading that puts it without the jurisdiction of the court in this action in the absence of appropriate objection made in apt time. The court might and ought to have disposed of it upon its merits.
The defendants are entitled to a new trial.
Error.
Cited: Lockhart v. Bear,