211 P. 548 | Idaho | 1922
This action was brought by respondent to recover $1,500 with interest and attorney’s fees' on two promissory notes given to him by appellants. The answer admits the execution, delivery and nonpayment of the notes,
The three specifications of error made by appellants go to the ruling of the court in sustaining the demurrer to the counterclaim. -
C. S., sections 6694 and 6695, read in part as follows:
“C. S., § 6694. The answer of the defendant shall contain :
“1. A general or specific denial of the material allegations of the complaint controverted by the defendant.
*475 “2. A statement of any new matter constituting a defense or counterclaim. .... ”
“C. S., § 6695. The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:
“l.,A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.
“2. In an action arising upon contract; any other cause of action arising also upon contract and existing at the commencement of the action.”
It is clear from the record that the facts set out in appellant’s answer constitute a counterclaim and the court erred in sustaining the demurrer thereto. Appellants had a right to show, if they could, damages arising out of the acts charged against respondent and to have the amount of damages shown, not exceeding $800, set off against the promissory notes sued on by respondent. (Wollan v. McKay, 24 Ida. 691, 135 Pac. 832.)
Under C. S., sec. 6696, after this action was brought by respondent, the only means by which appellants could have asserted their claim for damages against respondent was by a counterclaim in this action. Failing to so assert their claim, they could not have maintained a separate action thereafter for such damages. The judgment is reversed and the cause remanded. Costs to appellant.