Puffer v. Lucas

• Decision Date: 05 November 1888
• Citation: 7 S.E. 734,101 N.C. 281
• Parties: PUFFER et al. v. LUCAS et ux.
• Court: North Carolina Supreme Court

7 S.E. 734

101 N.C. 281

PUFFER et al. v. LUCAS et ux.

Supreme Court of North Carolina

November 5, 1888

Appeal from superior court, New Hanover county; PHILIPS, Judge.

Action to recover soda and mineral water apparatus, with its appurtenances, brought by Alvin D. Puffer and others partners as A. D. Puffer's Sons, against A. F. Lucas and Mary A., his wife. There was a judgment for plaintiffs, and defendants appeal.

The answer to a complaint for possession of a machine alleged that since suit brought plaintiff had agreed to sell defendants another machine, and take in part payment the machine in controversy, which was to remain in defendants' possession until delivery of the new machine and for breach of this contract asked that the prayer of the complaint be denied, and for $500 damages. Held, that if a counterclaim was not well pleaded, a cause of action was alleged, and that by failure to demur plaintiff waived the irregularity.

J. D Bellamy, for appellants.

T. W. Strange, for appellees.

MERRIMON J.

As a second defense, the defendants alleged in their answer as follows: "(1) That since the institution of this action the plaintiffs in this action, by and through their agent Charles Frank, contracted with the defendants to sell them another machine, No. 125, with apparatus, etc., connected therewith; that as a part of said agreement the said plaintiffs stipulated that the plaintiffs would take the machine in controversy in this action in part payment of the new machine, and agreed to allow the defendants the sum of $300 for the same; and that these defendants were to retain possession of the machine in controversy in this cause until the new machine arrived; that the said new machine was to be paid for in installments,--the sum of $120 upon arrival with the bill of lading attached, and the balance in installments on time. (2) That these plaintiffs have never yet complied with their contract, and the new machine has never been delivered, although defendants were willing and able to comply with their contract. (3) These defendants, by the unlawful and willful act of the plaintiffs, have sustained damage to the amount of five hundred dollars. Wherefore defendants pray judgment (1) that the prayer of the plaintiffs' complaint for the possession of said property be denied, and defendants be allowed to retain the same; (2) that the defendants receive of the plaintiffs the sum of five hundred dollars damages for the willful and unlawful breach of the aforesaid contract; (3) and for the costs of this action." The plaintiffs made reply to the answer, among other things, as follows: "(2) That the plaintiffs deny the truth of the facts set forth in article 1 of the second defense set forth in the said answer; that, if any such contract as set forth therein was executed by one Charles Frank, they deny that he was an agent of plaintiffs, with power or authority to make such contract, or that the same was ever ratified by the plaintiffs. (3) That they admit the second article of the second defense of the answer to the extent that they have never complied with the terms of any such contract, but they deny, as above, any such contract. (4) They deny the third article of the second defense set forth in the said answer. (5) Replying, further, the plaintiffs allege that no notice of such alleged breach of the contract set up in the answer, or that these plaintiffs claimed the existence of any such contract, until within the past two days,--during the present term of this court; and that no notice was ever served upon them, until that date, to produce said alleged contracts. Wherefore the plaintiffs demand the judgment prayed for in their complaint filed in this cause." The following is so much of the case settled on appeal as need be reported: "The action was commenced on the 16th day of August, 1886. The complaint was filed to January term, 1887; and at the said term of the court was amended. The answer...