McKinnon v. Morrison

• Decision Date: 16 December 1889
• Parties: McKINNON v. MORRISON.
• Court: North Carolina Supreme Court

10 S.E. 513

104 N.C. 354

McKINNON v. MORRISON.

Supreme Court of North Carolina

December 16, 1889

This is a civil action for the enforcement of an agricultural lien for advancements under the statute, tried before SHEPHERD J., at October term, 1888, of Robeson superior court, upon issues under the defendant's affidavit and notice filed with the sheriff. Defendant's bond, dated January 17 1887, due October 1st, payable to plaintiff in sum of $130 also a mortgage on the horse of same date; and an agricultural lien of same date, registered within 30 days,--were introduced in evidence. The agricultural lien was to secure the bond given for the horse, furnished after the execution of the lien, as advancements under said lien. No other advancements were furnished, and the lien covers crop seized. On these points there was no denial. The defense set up was that the horse's eyes were warranted, and that they proved defective; so much so that the horse went blind. Further, that plaintiff agreed, as a part of the terms of the sale, that he would insure the horse's life for 12 months, but failed to keep the premiums paid up; that, the horse having died, the defendant found that plaintiff had permitted the policy to lapse; and defendant sets up a counter-claim for the $90, amount of the policy, and also for damages for breach of warranty as to the soundness of the horse's eyes.

The defendant testified: "I saw there was some defect about the horse's eyes. Plaintiff, as an inducement to the trade, agreed that he would be responsible for any failure in the eye-sight, and pay the difference in value by reason of any failure of the eye-sight. Plaintiff also, as an inducement to the sale, agreed to take out a policy of $90 on the life of the horse. I took the horse home and worked him. In about ten days the eyes of the horse became inflamed. I carried him back, and McKinnon and I did not agree to the amount to be deducted. He then asked me to take the horse back, and he would see if he could get a horse to exchange with me, but we could never agree. The evening before the horse died, (six weeks after the trade,) I told plaintiff that the horse was sick, and that we had better make some definite arrangements. (Objection to this testimony by plaintiff.) On Monday after the horse's death I learned for the first time, that the policy had been forfeited. Horse's eyes damaged $100. I signed the application for the insurance on the horse. McRae was agent. The insurance company notified me before the horse died that the premium $1.30, was due. I did not pay the premium, nor did I notify the plaintiff. I saw McKinnon several times after I received the notice from the company that the premium owed was due, but I did not ask him to pay it, nor did I tell him that I received the notice. The notice you have is not the one served on me. I don't remember it saying that the policy would be forfeited. I worked the horse. Drove him to Maxton several times. McKinnon was to pay the premiums. (Objection by plaintiff. Overruled. Exception.) I was to have nothing further to do with it after signing the application." Testimony of McRae: "Defendant, Morrison, made the application for the insurance on the horse at the instance of McKinnon. The plaintiff said he wanted to insure; that he was going to sell him the horse. McKinnon was to pay the premium. (Objection by plaintiff. Overruled. Plaintiff excepts.) Defendant, Morrison, signed the application for the insurance. Defendant said: 'This is all I have to do with it.' Plaintiff knew when the premium was due. When the policy came, I notified plaintiff to come and get it, and he said, 'Let it stay,' and he would come and get it. McKinnon knew that the premiums were to be paid quarterly. Neither plaintiff nor defendant saw the policy until after the death of the horse. Plaintiff said he was to pay the fees. (Objection by plaintiff. Overruled. Exception.) A blind horse is worth half price." Ed. McRae: "Horse was blind. Was worth $25." R. M. Field: "Horse practically blind. Worth $25." The plaintiff testified: "The value of the horse at the time of sale was $130. Defendant agreed to give me that price for the horse, and executed his note and mortgage and lien to secure it. Defendant and I traded. We went to McRae to take out policy. McRae worked out the first premium, and I paid it then. There was nothing said, that I heard, about who was to pay the other premiums. I got no notice from the insurance company nor defendant that the premium was due. Did not know it was due. I would have paid it if I had known it was due. McRae told me policy was there. I told him to keep it. He had all my papers for safe-keeping. I examined policy after horse died, and I could not have ascertained from it when the premium would be due. I did not agree to pay any premium but the first. Before we traded defendant doubted the horse's eyes. I said I would warrant the horse's eyes, but nothing else. I traded the defendant another horse in place of the first one, and carried him down to defendant, and he refused to take it. The horse was damaged $30 on account of his eyes. He never went blind. Defendant drove the horse to Maxton, and return the day before he died, and told me his eyes had gotten almost well. McRae told Morrison that he would have to insure the horse, as he was the owner; that was the insurance law." Geo. Norment testified: "I knew the horse well before McKinnon sold him. There was nothing the matter with his eyes." The pleadings in the case and the policy were introduced in evidence.

The plaintiff insisted that there should be an issue, "Did plaintiff agree to keep the horse insured?" separate from the issue, "Did plaintiff agree to insure the horse for twelve months?" The plaintiff asked the court to instruct the jury as follows: "(1) That defendant having admitted that he had notice that the premium was due before it was due, and that he did not pay the same; that he saw plaintiff several times after he received notice, and did not inform him that he must pay premium, or that premium was due,--defendant cannot recover for insurance, as he was guilty of negligence. (2) That if plaintiff has been negligent, yet if defendant, by reasonable care and prudence, could have averted the loss, then defendant would not be entitled to damages for or on account of the lapse of the insurance policy. (3) That the policy, by its terms, shows that Morrison was to pay the premiums, and cannot be contradicted, and defendant is bound by it. (4) That if plaintiff could not have told from the policy when premium was due, then he would not be liable."

The other instructions asked by plaintiff were given.

In lieu of these four instructions, the court charged the jury "that if they were satisfied McKinnon agreed to insure the horse, and keep him insured for twelve months, then they would respond to the fourth issue, 'Yes;' otherwise, 'No.' That if McKinnon agreed at the time of the trade, and it was a part thereof, that he (McKinnon) would take out and keep up at his expense a policy of insurance on the life of the horse, and it was then and there agreed between him and Morrison that Morrison was to have no further connection with the insurance, but that McKinnon was to attend to it and keep it up, and that McKinnon was then and there informed by McRae, the insurance agent, when the premium was to be paid, and the policy afterwards lapsed by McKinnon's failure to pay the premium, then the amount of the policy must be deducted from the value of the horse, after first deducting any depreciation on account of blindness, to the extent only of the actual value of the horse, and they would answer fifth issue, '$90."'

His honor submitted the following issues to the jury, in addition to the issues in regard to damages for breach of warranty as to the eye-sight, about which no point is raised on the appeal: "(1) Did the plaintiff agree to insure the life of the horse, and keep the same insured for twelve months? Answer. Yes. (2) What damage has the defendant sustained by reason of the breach of this agreement? A. $90."

Motion by plaintiff for new trial: (1) For refusal to submit the issue, "Did plaintiff agree to insure the horse?" disconnected with the issue, "Did he agree to keep him insured for twelve months?" (2) For refusal to give instructions asked for. (3) For error in charge as given. (4) For admission of improper testimony. (5) for expression of opinion. (6) For that the findings of the jury are inconsistent, and contrary to the weight of the testimony. Motion overruled. Judgment, and appeal by plaintiff.

William Black, for appellant.

T. A. McNeill, for appellee.

CLARK, J., (after stating the facts as above.)

The plaintiff moved in this court to strike out "that part of the answer which sets up a counter-claim for damages, this action being in contract." In a proper case, such motion here is allowable, because a counter-claim is a cross-action, and, if the court below did not have jurisdiction, advantage can be taken of that defect in this court. Tucker v. Baker, 86 N.C. 1; Bryant v. Fisher, 85 N.C. 69. The plaintiff's motion is based on the ground that damages, being for a tort, cannot be pleaded as a counter-claim to an action on a contract. But damages are not necessarily for a tort. There are damages ex delicto, and damages ex contractu for breach of contract. The counter-claim here set up belongs to the latter class. Froelich v. Express Co., 67 N.C. 1. Were this not so, still it is properly pleaded, as it arises out of the "transaction set forth in the complaint as the foundation of the plaintiff's claim." Code, § 244, subsec. 1; Bitting v. Thaxton, 72 N.C. 541. The motion to strike out the counter-claim must be denied.

The first exception...