Bitting v. . Thaxton , 72 N.C. 541 ( 1875 )

The plaintiff claims that the defendant as his agent received so much money for him, and withholds, and also converted property belonging to the plaintiff, to the defendant's own use, which was worth so much, and for these causes the action is brought.

The defence is a counter claim for services rendered as agent in respect to the matters complained of.

The jury adjusted the claims of the parties, and finding a balance due the defendant, of so much, returned a verdict for the defendant for the balance due him.

The verdict must be sustained unless there was some error of law on the trial.

1. The first error alleged by the plaintiff is, that his declaration is in tort, and that no counter claim can be allowed.

"The distinction between actions at law and suits in equity, and the forms of all such actions, heretofore existing are abolished and there shall be in this State, hereafter but one form of action," c. C.C.P. sec. 12.

"All the forms of pleading heretofore existing are abolished," c. C.C.P. sec. 91.

A counter claim must be "a cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action," C.C.P. sec. 101, sub-div. 1.

If there is anything settled in our new system it is that there is but one form of action. There are torts and contracts just as there used to be; but there are not several forms of action as there used to be, and pleadings are not suited for different forms of action as they used to be; but are all suited to one form, whether the subject of the action be a tort or a contract. And when the plaintiff files his complaint, setting forth the "transaction," whether it be a tort or a contract the defendant may set up any claim, which he has against the plaintiff, connected with the transaction set up in the complaint; and this is called a "counter claim." And when the plaintiff states the "transaction" in his complaint he cannot by calling it one name or another — as tort or contract, cut off the defendant's counter claim growing out of the same transaction. It is thetransaction that is to be investigated, without regard to its form or name.Walsh v. Hall, 66 N.C. 233, is probably as good an illustration as could be given; A gave B a horse in payment for a tract of land. The horse got back into the possession of A, and B sued A for the horse. And A was permitted to set up as a counter claim that B had cheated him as to the land. So here, the defendant's counter claim is "connected with the transaction" out of which grows the plaintiff's claim, and whether the transaction be called tort or contract makes no difference.

It may be proper to say that where the plaintiff's claim is founded on a contract, then the defendant may set up any contract as a counter claim, whether connected with the plaintiff's claim or not.

2. The plaintiff in order to prove that the defendant had converted thirty-seven boxes of the plaintiff's tobacco to his own use, by selling them to one Reid, offered a copy of Reid's book in evidence in which Reid had credited the defendant with the tobacco as his own, and not as agent for plaintiff. And the evidence was rejected.

Reid's book was only Reid's declaration, and that was not competent evidence. And certainly the copy was not better than the original. The only view in which it could be used would have been to strengthen Reid's testimony, who was examined as a witness, by showing that he had made the same statement before, and it would be very slight for that purpose, but it was not offered with that view; but it was offered as evidence of the fact itself.

3. The defendant as a witness was examined as to the solvency of said Reid and he answered, "that at the time of the deposit of tobacco he believed he was solvent." The plaintiff objected to this and said "that the witness should be confined to his general reputation."

There certainly could be no objection to the witness stating his belief about it. What his belief amounts to, was another question. Reputation is not the only evidence of solvency or insolvency. If the object was as it seems to have been, to show that the defendant acted in good faith, it was competent for that purpose, but it left the question open as to whether he had exercised reasonable diligence in making inquiries to support his belief.

His Honor's charge upon a number of points is set out and there is a general exception on the part of the plaintiff.

We have not discovered any error. There is no error.

PER CURIAM. Judgment affirmed.