Advance Thresher Co. v. Klein

• Decision Date: 03 October 1911
• Citation: 28 S.D. 177,133 N.W. 51
• Parties: ADVANCE THRESHER COMPANY, Plaintiff and , v. EDWARD KLEIN, Defendant and .
• Court: South Dakota Supreme Court

28 S.D. 177, 133 N.W. 51 (1911)

ADVANCE THRESHER COMPANY,

Plaintiff and ,

v. EDWARD KLEIN,

Defendant and .

South Dakota Supreme Court

Appeal from Circuit Court, Edmunds County, SD

Hon. J. H. Bottum, Judge

Affirmed and remanded

Chas. N. Harris, Clarence O. Newcomb

Attorneys for appellant.

Barron & Barron, C. M. Stevens

Attorneys for respondent.

Opinion filed October 3, 1911

McCOY, J.

Plaintiff, who is appellant in this court, brought this action to recover from defendant, the respondent, a balance of $1,728.55 claimed to be due on six promissory notes set out in the complaint. To this complaint the defendant made answer admitting the execution and delivery of said notes, and as a counterclaim alleged that on or about April, 1909, plaintiff and defendant entered into a certain contract for the sale of a threshing rig, consisting, among other things, of a steam engine and separator, purchased from plaintiff by defendant for the agreed contract price of $4,412.50, and that the said notes mentioned in the complaint were given in consideration of a part of said purchase price under said contract; that under and by the terms of said contract of sale, and as a part of the same transaction, plaintiff agreed, upon notice and at defendant's request, to remedy any defects in said engine and to put it in good order, and that in and by the terms of said contract defendant agreed, upon request of plaintiff, to render assistance to plaintiff while repairing. said engine; that pursuant to the said contract and about July, 1909, at the request of defendant, plaintiff sent one of its servants and agents to the farm 0f defendant to repair the said steam engine; that plaintiff's said servant and agent entered upon the work of repairing said engine, and while so acting, and as such servant and agent, and while so engaged in said work and in the performance of his duties within the scope of his authority, requested defendant's minor son, Andrew Klein, to assist him in the prosecution of said work; that while said son was so engaged in assisting the said servant and agent of plaintiff the said servant and agent of plaintiff so carelessly and negligently started up and operated said engine that it caught the foot and leg of said minor son under one of the wheels of said engine, and so drew said foot and leg under the wheel of said engine that the same was crushed, and the bones and flesh so mangled and mashed that it was necessary to amputate, and the defendant caused to be amputated the leg of said minor just below the knee; that at all the times herein set forth the said Andrew Klein was the minor son of defendant, and as such was under defendant's guardianship and in his custody, control, and employment; and plaintiff's said agent and servant requested said minor son to assist him in said work as the ward and employee of defendant, and such assistance was rendered to plaintiff's said servant and agent under and in pursuance of the contract between plaintiff and defendant as hereinbefore set forth; that on account of said injury defendant was compelled to and did expend $550 for nursing and in medical attendance upon and medicine for said minor son, and said minor son has been rendered permanently lame and unable to perform work and labor, and defendant thereby deprived of the services of said minor son until he shall become of age, to his damage in the sum of $2,500. Wherefore defendant demands judgment against the plaintiff in the sum of $2,500, and that said amount, sufficient to cancel the amount due on said notes and the obligation set forth in plaintiff's complaint, be set off against the same, and that defendant have judgment for the balance thereof, together with costs.

To this counterclaim plaintiff interposed a demurrer upon the grounds: (1) That said counterclaim is not founded upon the contract set forth in plaintiff's complaint, as a foundation of plaintiff's claim, or connected with the subject of the action; (2) nor does the counterclaim state a cause of action arising on contract, but is a separate and distinct cause of action founded on tort. The court overruled said demurrer, to which ruling the plaintiff excepted and now urges such ruling as error.

The principal contention of appellant is that the counterclaim is not connected in any...