| N.C. | May 11, 1911
The plaintiffs, Shell Southerland, a partnership, sold their livery business to the defendants, who were husband and wife, taking a note, signed by them both, in the sum of $600, upon which this action is brought. The husband pleaded as a counterclaim that subsequently to the above sale the plaintiffs sold him a surrey for $142 and warranted the same; that the surrey proved to be worthless, and he sets up damages for the breach of warranty as a counterclaim. The jury assessed the counterclaim at $100, which was deducted from the amount which was admitted to be due upon the note.
The plaintiffs present several exceptions, but in their brief they are practically reduced to two propositions. They contend that the counterclaim was due to the husband only, and, therefore, judgment should have been rendered against the wife for the full amount of the note. But, as the note was joint and several, any credit allowed thereon in the judgment rendered against one of the obligors will, of course, be a payment as to the other. The note sued on was due to the (213) partnership, and the counterclaim was owing by the partnership, and was, therefore, properly allowed as a counterclaim.
The second contention of the plaintiffs is that the counterclaim was for a tort, and inasmuch as it did not arise out of the same transaction *174
it could not be set up as a counterclaim. Revisal, 481. The answer to this is that the damages for breach of warranty arise out of contract, and are, therefore, a proper counterclaim. Even if the counterclaim had been for fraud and deceit, and, therefore, an action ex delicto under the old procedure, the defendant could waive the tort and sue in contract.Bullinger v. Marshall,
No error.