Ravicz v. Nickells
| Decision Date | 20 November 1900 |
| Citation | 84 N.W. 353,9 N.D. 536 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by Simon Ravicz against Clinton G. Nickells, administrator. Judgment for plaintiff, and defendant appeals.
Affirmed.
W. E Purcell, for appellant.
The fact that the counterclaim is one for damages for tort pleaded in an action on contract is immaterial. The question whether a counterclaim is proper or improper can only be taken advantage of by demurrer and not raised at the trial by motion. First Nat. Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473. All defenses invalidating a contract which forms the subject-matter of an action, such as fraud, etc., are included under the general term "new matter." New York Central Ins. Co. v. National Co., 20 Barb 468; Castree v. Gavial, 4 E. D. Smith, 428; § § 55 and 59, Chap. 113, Laws 1899. The counterclaim of the code being more comprehensive than set-off or recoupment authorizes resort by the defendant to causes of action not embraced in either of those defenses. Vassear v Livingston, 13 N.Y. 248. It secures to defendant the full relief which a separate action at law or a bill of chancery would have secured him in the same state of facts. Leavenworth v. Packer, 52 Barb. 132; Boston Silk & Woolen Mills v. Eull, 37 How Prac. 299. Defendant pleaded facts sufficient to show that the note was obtained by fraud and that the consideration was illegal. This cast upon plaintiff the burden of showing that he was a holder in good faith, for value. Cummings v. Thompson, 18 Minn. 246. The prayer of the complaint is in effect for the cancellation of the note. If plaintiff obtained judgment against defendant for the amount of the note and defendant obtained judgment against the plaintiff for the amount due on the note, this would amount to cancellation of the note, and defendant is entitled to a cancellation, although not in words asked for in his pleading. Sigler v. Hidy, 9 N.W. 374; Smith v. Eals, 46 N.W. 1110. Defendant had a present existing cause of action at the time suit was brought for the cancellation, surrender and possession of the note. That cause of action was connected with the subject-matter of this action, viz: the note itself. Replevin would lie for possession of the note. Gray v. Shannon, 7 Ia. 508; Bush v. Broomes, 125 Ind. 14; Savery v. Hayes, 2 Ia. 25; Sigler v. Hidy, 9 N.W. 374.
A. J. Bessie and L. B. Everdell, for respondent. (No. brief filed).
Plaintiff brought this action to establish a claim against the estate of a decedent, pursuant to section 6407, Rev. Codes. There was a trial to a jury, and at the close of the testimony each party moved for a directed verdict in his favor. The court granted plaintiff's motion, and overruled that of the defendant. A motion for new trial was denied, and judgment entered upon the verdict. Defendant appeals.
The claim was upon a promissory note purporting to be executed by Maude D. Nickells to Daniel A. Bessie. Plaintiff claimed as the indorsee of said Bessie. By the answer the execution of the note by Maude D. Nickells, and the facts that she subsequently died testate, naming the defendant Clinton G. Nickells as the sole executor of her estate; that her will had been duly proved and admitted to probate in this state, and that the executor named had qualified and entered upon the discharge of his duties, and that the claim had been duly presented and rejected, -- were admitted. Various defenses were pleaded, only two of which need be mentioned. Defendant pleaded fraud in the inception of the note, and also, and under the name of counterclaim, alleged that plaintiff was not a good-faith purchaser of the note, and that the payee, Bessie, fraudulently converted to his own use and embezzled an amount of property in excess of the note belonging to Maude D. Nickells, and for which he is indebted to the estate. The answer prays that the action be dismissed, and that defendant recover of the plaintiff the amount apparently due upon said note. At the trial the plaintiff introduced the note, bearing the indorsement of Daniel A. Bessie, -- as to which no question is made in the case, -- and rested. Defendant introduced no testimony. He urges that the court erred in directing a verdict for plaintiff, because it appears conclusively that plaintiff is not a bona fide holder of said note, and because there was an admitted counterclaim in the case. His first point seems to be based upon the proposition that, as he pleaded fraud in the...
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