Branch v. Chappell

• Decision Date: 20 October 1896
• Citation: 25 S.E. 783,119 N.C. 81
• Court: North Carolina Supreme Court
• Parties: BRANCH. v. CHAPPELL et al.

25 S.E. 783

119 N.C. 81

BRANCH.

v.CHAPPELL et al.

Supreme Court of North Carolina.

Oct. 20, 1896.

Counterclaim—Action on Contract—Counterclaim Sounding in Tort. Under Code, § 244, providing that a defendant may plead as a counterclaim a cause of action arising out of the contract or transaction set forth as the foundation of plaintiff's claim, or connected with the subject of the action, the defendant in an action for work and labor in cutting timber may plead as a counterclaim damages sustained in consequence of a fire negligently set and permitted to escape by plaintiff, while so engaged at work for defendants, in disobedience of orders.

Appeal from superior court, Halifax county; Graham, Judge.

Action by George Branch against Edward Chappell and Waiter Chappell, co-partners as Edward Chappell & Son, to recover for work and labor done in cutting timber for defendants. From a judgment for plaintiff, defendants appeal. Reversed.

MacRae & Day and E. T. Clark, for appellants.

CLARK, J. The plaintiff sued the defendants for work and labor done in cutting timber trees. The defendants offered, as a counterclaim, to show that the plaintiff, while so engaged at work for defendants, negligently permitted fire to escape, damaging the defendants, who were put also to much expense to put out the fire, to prevent greater damage. The sole question is whether the damage caused by the negligence of the plaintiff while engaged in work for defendants is a counterclaim in an action for compensation for such work. The spirit of the Code is to prevent multiplicity of actions, and by section 244, subsec. 1, a tort can be pleaded as a counterclaim to an action either in contract or tort, if "connected with the subject of the action." The subject of the action here is cutting timber for the defendants. Injury sustained from carelessness of the plaintiff while doing work for defendant is held to be "connected with the subject of the action, " in an action by the workman for his wages. Eaton v. Woolly, 28 Wis. 628; De Witt v. Cullings, 32 Wis. 298; 1 Boone, Code PI. § 90, note 1. Among instances somewhat similar, to an action by the mortgagee, after foreclosure sale, for deficiency, the mortgagor was allowed to plead a counterclaim for waste committed by the mortgagee while in possession. Smith v Fife, 2 Neb. 10; Allen v. Shackleton, 15 Ohio St 145. To an action on a rent note, the tenant may set up a counterclaim for injury sustained by the landlord's interference with leased...